I did express to them that I was sorry that they were feeling pain. This is not an easy thing to do when you know that people that you care about on both sides of the issue will be affected very significantly and very personally. —Utah Attorney General Sean Reyes
DENVER — The question of same-sex marriage in Utah rests — for now — with three federal appeals court judges who probed and picked at arguments on both sides of the emotional issue in a hearing Thursday.
Attorneys for the state and three gay and lesbian couples had 30 minutes each to make their cases before the 10th Circuit Court of Appeals. In addition to highlighting points in their lengthy written briefs, both sides fielded rigorous questions from Judges Paul J. Kelly Jr., Carlos F. Lucero and Jerome A. Holmes.
Much of the debate centered on the lawyers' interpretation of the U.S. Supreme Court decision in U.S. v. Windsor last summer that struck down the section of the federal Defense of Marriage Act that defines marriage as between a man and a woman for purposes of federal law.
The judges also explored federalism, the fundamental right to marry, Utah's definition of marriage and its rationale, and what level of judicial scrutiny to apply to the case.
In his questioning, Holmes noted points of law on which either side could lose.
Utah contends the Windsor decision recognizes the state's power to define and regulate marriage. The plaintiffs argue that the state's definition of marriage is unconstitutional.
"The issue really is one of authority," Gene Schaerr, the state's lawyer, told the judges.
Schaerr described Utah's "childcentric" vision of marriage that sends the message that a mother and a father are important.
"When you redefine marriage in genderless terms, you dilute that message and dilute that norm in the law," he said.
Late Wednesday, the state filed a letter with the court to distance itself from a controversial study by University of Texas sociologist Mark Regnerus cited in its opening brief. Regnerus found that children in same-sex households were more likely to have problems — welfare dependence, less education, marijuana use — than young adults from stable families led by heterosexuals.
Holmes asked Schaerr why the state was "backpedaling" from the study. Schaerr said it's not relevant to the state's case and the "bottom line" is studies in that area are inconclusive.
Peggy Tomsic, the plaintiffs' attorney, told the panel that Utah's law defining marriage as between a man and a woman is discriminatory and violates same-sex couples' rights to equal protection and due process under the 14th Amendment.
Tomsic said the state has failed to show that same-sex parents aren't as good as heterosexual parents.
"There isn't a single social science study they've cited that is on point," she said.
It will likely be months before the panel issues a ruling, which will become law in the six states in its jurisdiction — Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming — unless it is stayed. New Mexico's Supreme Court has already legalized gay marriage in that state.
The plaintiffs — Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call — sat behind their lawyers with their arms around each other's shoulders during the hearing in the packed courtroom.
As the crowd waited for court to start, Utah Attorney General Sean Reyes walked across the aisle and spoke to the plaintiffs.
"I wished them the best. I told them I knew their families were as important to them as my families are important to me, and it's not personal by any means," Reyes said outside the Byron White United States Courthouse.
"I did express to them that I was sorry that they were feeling pain. This is not an easy thing to do when you know that people that you care about on both sides of the issue will be affected very significantly and very personally," he said.
Asked if he agreed with the state's voter-approved Amendment 3, Reyes declined to state a position.
"My personal opinions aren't relevant to my duty to defend the laws of the state of Utah. I haven't gone on record and I won't," he said.
A largely pro same-sex marriage crowd cheered when the three couples walked down the courthouse steps after the hearing.
Kitchen told reporters he appreciates Reyes' outreach and believes it was sincere.
But "I don't fully understand his position," he said. "I don't know if I can quite grasp what it was that he said to us because he is arguing against us, after all, and our lives are on the line here."
The Utah case is the first to reach a federal appellate court since the Supreme Court ruled in Windsor. It is one of several cases nationwide at that stage, and it is anticipated that one will eventually make its way to the U.S. Supreme Court.
The three couples challenged Utah's law against same-sex marriage in federal court just a year ago last month.
U.S. District Judge Robert J. Shelby's ruling in December upended Utah's voter-approved Amendment 3 defining marriage as between a man and a woman. He found the law violates the due process and equal protection clauses of the 14th Amendment.
Utah appealed Shelby's decision and obtained a stay from the U.S. Supreme Court, but not before about 1,300 same-sex couples were married in Utah. The three-judge panel in the 10th Circuit will decide whether to affirm or reverse his ruling.
After the hearing, Tomsic said the judges clearly read all the court filings in the case, including more than 40 friend-of-the-court briefs filed by outside interests.
"The questions they asked us were the most relevant questions that you could ask," she said.
Holmes' first question to Schaerr referred to a onetime Virgina law that prohibited interracial marriage.
"What barred them from getting married was race. Why in this case is it any different?" he asked.
Schaerr said that case involved a man-woman relationship, which is "fundamental to procreating and maintaining the human race."
Lucero noted that Shelby's ruling said the issue is not Utah's definition of marriage, and wondered whether the state has the authority to deny same-sex couples marriage without violating their rights.
"That's really the issue before us," Lucero said.
Schaerr said the question of a fundamental right to marriage can't be answered without first defining what marriage is. The state has the authority to adopt its own vision of marriage, and Utah sees it as between a man and a woman, he said. The law doesn't discriminate against either gender, so it doesn't violate anyone's rights, Schaerr said.
"What does it matter who's claiming the right? It's a fundamental right," Holmes said.
Schaerr replied that raises the whole question of what marriage is.
Holmes later asked Tomsic, "Why can't the state do what it wants to do?"
Tomsic said the state must have a legitimate interest for the law. She said there is no connection between the exclusion of same-sex couples from marriage and any of the state's interests, "even if they are valid, and we question a number of them."
Tomsic also raised the notion of animus or hostility in Utah's Amendment 3. It's only purpose, she said, is to treat same-sex couples unequally, a stigma they and their children have to live with every day.
That topic elicited questions from Kelly, who spoke the least among the three judges.
"They may be wrong, but does that express from a legal standpoint that they were being mean-spirited and bigoted?" he asked.
Kelly noted that Utah passed legislation and voters approved the state's definition of marriage.
"We can't just ignore what the state has done," he said.
Since the high court ruling on DOMA, eight federal judges, including Shelby, have struck down state bans on gay marriage or on the recognition of same-sex marriage from other states.
Those states are Michigan, Nevada, Ohio, Oklahoma, Tennessee, Texas, Utah and Virginia. Kentucky has filed notice that it will appeal a federal ruling that it must recognize same-sex marriages from other states, making nine states whose cases are on appeal.
The same three 10th Circuit judges will hear Oklahoma's appeal next Thursday.
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