Split Appeals Court Hears Oral Arguments in the Utah Same-Sex Marriage Case

Thursday's oral arguments in Utah's same-sex marriage legal battle revealed a split court on the most-watched same-sex marriage case in the courts right now. 

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Update: Thursday's oral arguments in Utah's same-sex marriage legal battle focused on states rights, Utah's claims on same-sex marriage's impact on children, and the Loving v. Virginia case that ended interracial marriage, according to multiple early reports form what appears to be a split 10th Circuit Court of Appeals panel just after the arguments ended in Denver.

Some early takeaways:

  • The state's most convincing defense is state's rights. Judge Paul J. Kelly Jr. seemed to go the hardest against the case challenging Utah's ban, on the grounds of state's rights. "Judge Kelly really went after the plaintiffs over state's rights issues," Fox 13's Ben Winslow tweeted upon leaving the courtroom. Writer Brooke Adams wrote that "Kelly appeared squarely on state side and got testy with [plaintiff attorney] Tomsic." 
  • The three-judge panel is split, but leaning towards the plaintiffs. Of the three-judge panel, Kelly is apparently with the state, with Judge Carlos F. Lucero siding with the plaintiffs. Judge Jerome A. Holmes appears to be a swing, to some degree. Buzzfeed's Chris Geidner's early take is that Holmes is "leaning toward heightened scrutiny based on sex." Overall, Holmes appears to be leaning more towards the plaintiffs. Attorney and writer Michelle Olsen noted that "Holmes, being called swing, already voted to deny UT stay request on Christmas Eve. I would be surprised if he doesn't vote w plaintiffs." 
  • The state's use of a discredited parenting study harmed their case. Judge Holmes reportedly asked whether the state even had a case following their acknowledgement that their citation of the controversial Regnerus study. 

Other early Twitter reactions:

Original Post: Today, Utah's same-sex marriage ban has a big day in court, as the state appeals a broad federal ruling overturning the ban on Constitutional grounds at the end of last year. Observers began lining up for today's oral arguments before the 10th Circuit Court of Appeals in Denver early, and for good reason: this case, the Utah case, could very well be the lawsuit that challenges the Supreme Court to apply its reasoning in the Windsor decision to same-sex marriage bans in every state in the U.S.  But there's still a long way to go before we see if that happens, so let's take a look at what's going to happen today in Denver.

Oral arguments begin at 10 a.m. Mountain Time on Thursday, during which reporters in the court won't be able to tweet. So, we'll have a summary of what happened in court as those who were there are able to get out of the building and give their takes.

What's this case about?

Just before Christmas last December, District Court Judge Robert J. Shelby declared Utah's same-sex marriage bans — often referred to as Amendment 3 — unconstitutional. His decision cited the equal protection and due process clauses in the U.S. Constitution, the same provisions cited by the Supreme Court in its decision in favor of striking down portions of the federal Defense of Marriage Act. Shelby wrote that "the state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason." His decision did not contain a stay, meaning that same-sex couples in the state were immediately able to apply for marriage licenses. More than 1,000 couples married across the state before a stay was finally issued, while the case is appealed. In the meantime, state recognition of Utah's same-sex marriages are on "pause."

The case in question is Kitchen v. Herbert. The challenge to the state ban will be presented by attorneys James E. Magleby and Peggy A. Tomsic. The Salt Lake Tribune did a really interesting profile of the pair. They're presenting their arguments to what's been described as a "slightly conservative," randomly-selected trio of judges on the 10th Circuit. But by all accounts, Tomsic and Magleby have mounted a very, very strong challenge to the ban, and one that has so far moved cleanly through the court system. We'll have to wait and see what happens before the 10th Circuit, however.

How will Utah defend its ban?

First, Utah plans to argue that its ban is good for the sake of the state's children. Here's an excerpt from the state's opening brief in the appeals to that effect :

[The state's children] cannot defend their own interests. The State thus has a duty to consider their interests in deciding whether to abandon the man-woman definition of marriage. And Utah voters, in enacting the constitutional amendment known as Amendment 3, reaffirmed among other things their firm belief  also supported by sound social science that moms and dads are different, not interchangeable, and that the diversity of having both a mom and a dad is the ideal parenting environment.

The state will argue that a "redefinition" of marriage to include same-sex couples "poses real, concrete risks to children — especially in future generations." And, the state will characterize same-sex couples as engaging in a "private" behavior that the state has no interest in stopping, writing that the "laws at issue here simply encourage a familial structure that has served society for thousands of years as the ideal setting for raising children." 

Late last night, however, the state backed away from one portion of its "think of the children" defense. In a Wednesday filing, the state asked the court to ignore the brief's references to the Regnerus study, a discredited study often cited by anti-gay activists to characterize the "risks" of same-sex couples parenting children.

The state will also argue that the Supreme Court's Windsor decision, cited in many federal opinions in favor of same-sex marriage rights, actually protects the states' "traditional authority over marriage." We've outlined some of the details in these arguments from Utah and other states fighting for their bans, here

OK, but there are a million same-sex marriage court cases right now. Why's this one so important?

In short, it's because the Utah case — or the similar Oklahoma case the same panel of 10th circuit judges will hear next week — could end up at the Supreme Court as soon as next term. Same-sex marriage supporters are hoping that circuit judges Judge Paul J. Kelly Jr., Judge Carlos F. Lucero, and Judge Jerome A. Holmes will issue a broad ruling in favor of same-sex marriages today, and that the Supreme Court will follow suit after a state's inevitable challenge to any decision striking down their bans. As Buzzfeed's Chris Geidner explained, constitutional challenges in federal court to state-wide bans on same-sex marriages have a perfect record since last summer's Windsor on the District Court level, even in traditionally conservative states. But don't take our word for it. People know this case is important, as evidenced by the staggering lines this morning to grab some seats during the oral arguments:

District Judge Shelby acknowledged in his December decision that this case could be the one to provide more broad protections of marriage rights for same-sex couples across the nation. Addressing the Supreme Court's narrow decision last year on California's Proposition 8 ban on same-sex marriages (the court decided against the ban on standing, without addressing the constitutionality of the law itself), Shelby wrote:

A number of lawsuits, including the suit currently pending before this court, have been filed across the country to address the question that the Supreme Court left unanswered in the California case. The court turns to that question now. 

Fox 13, which has done a really thorough job of covering this case, have helpfully posted all of the relevant court documents here, in case you're interested.

This article is from the archive of our partner The Wire.