Damian Dovarganes, Associated Press
Oral arguments ended in the Utah same-sex marriage case more than two weeks ago, but the exchange between the two sides continues on paper as courts in other states issue rulings.

SALT LAKE CITY — Oral arguments ended in the Utah same-sex marriage case more than two weeks ago, but the exchange of legal arguments between the two sides continues.

The plaintiffs' lawyer Peggy Tomsic pointed the 10th Circuit Court of Appeals to recent decisions in Ohio and Indiana that she contends support their position. Gene Schaerr, Utah's lead attorney, countered that with the state's take on the rulings. The arguments were filed in the case last week.

In the Ohio case, a federal judge held that the state's law prohibiting recognition of same-sex couples who married in other states violates the equal protection clause of the 14th Amendment under the "rational basis" standard, Tomsic wrote. The court found Ohio had no "legitimate justification for the ongoing arbitrary discrimination on the basis of sexual orientation."

Attorneys in the Utah case disagree over what legal standard the 10th Circuit should apply. Schearr argued for rational basis, meaning the plaintiffs must prove Utah's law defining marriage as between a man and a woman is unconstitutional. Tomsic says the judges should use "heightened scrutiny," under which the state has the burden to prove the law should be upheld.

Tomsic also wrote that the court in Ohio found marriage is a fundamental right that is denied to same-sex couples by the state's recognition ban. It also found that classifications based on sexual orientation must pass under heightened scrutiny to survive a constitutional challenge, she wrote.

In his response, Schaerr called the plaintiffs' statements and the Ohio court's use of the landmark Loving v. Virginia case invalidating a ban on interracial marriage "incorrect."

In Loving, the court found the anti-miscegenation law was designed to "maintain white supremacy."

"Here, none could contend that Utah's marriage definition is designed to have or actually has a disparate impact on men or women as a class," Schaerr wrote.

He conceded the law may have a disparate impact on gay and lesbian people. But he argued that even if the court found discrimination, it would not trigger heightened scrutiny. Schaerr wrote that 10th Circuit precedent holds that sexual orientation discrimination is subject only to rational basis review.

Schaerr also argues the Loving case has nothing to do with Utah's interest in permitting only man-woman marriages. The law creates incentives to bind parents with their children and a child-centered view of marriage "increases the likelihood that biological parents stay together even when adult emotions fade."

In the Indiana case, a federal judge granted a temporary order on April 10 requiring the state to recognize the same-sex marriage of a lesbian couple performed in Massachusetts. One of the women is dying of ovarian cancer and the couple argued they need their marriage recognized so they can get access to federal and state safety nets for surviving spouses and their children.

Tomsic, in her filing in the Utah case, pointed out that the court concluded that the plaintiffs in Indiana showed a likelihood of success on the merits of their arguments. She noted the court found "there will likely be insufficient evidence of a legitimate state interest to justify the singling out of same-sex married couples for non-recognition."

She also noted the court's opinion that the effect of the Indiana law is to "identify a subset of state-sanctioned marriages and make them unequal."

Schaerr argued the Indiana court's rejection of that state's concern about the dilution of child-friendly social norms ignores the law's role as a "teacher" of the public.

He likened it to laws that protect people with disabilities from discrimination, which, he wrote, create or reinforce the idea that they should be accepted in society. Conversely, repealing such a law, he said, would weaken the norm of accepting people with disabilities and cause some to act differently toward them.

"The man-woman definition of marriage teaches social norms speaking primarily to heterosexual parents and potential parents, for example, that gender diversity and biological connectedness matter, and that procreation should ideally be reserved for marriage," Schaerr wrote.

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