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(Brooke Adams | The Salt Lake Tribune) Utah's plaintiffs in the same-sex marriage case outside of the 10th Circuit Court of Appeals in Denver.
Denver judges appear divided on Utah same-sex marriage case

States’ rights, family, children’s welfare, equality among the key issues on the table.

First Published Apr 10 2014 10:07 pm • Last Updated Apr 11 2014 12:40 pm

Denver • After an hourlong hearing at the 10th Circuit Court of Appeals, Utah’s same-sex marriage case was left in the hands of what appeared Thursday to be a divided court.

All three judges — Paul J. Kelly Jr., Carlos F. Lucero and Jerome A. Holmes — pushed in different directions as they asked questions about family, equality, legal review standards and states’ rights.

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In the end, Kelly appeared squarely on the state’s side, while Lucero voiced strong concern about the law’s impacts on children of gay parents and couples married elsewhere.

Holmes appeared the most torn and summarized his dilemma this way: The state loses if its central claims about child welfare are unproven. But, he said, that same uncertainty works against the plaintiffs because the state’s assertions about gay parenting may be real and may give Utah a reason for restricting access to civil marriage.

Holmes, who is black, also drilled Utah counsel Gene C. Schaerr about whether the ban created a "second-class" of couples similar to anti-miscegenation laws that were struck down in Loving v. Virginia in 1967, ending prohibitions on interracial marriage.

"What barred them from getting married was race and in this instance, why is that any different?" Holmes asked. "You have a man who wants to marry another man and the only thing that bars them from getting married is sex, gender."

Attorneys on each side had 30 minutes to press their best points before the panel, with plaintiffs’ attorney Peggy A. Tomsic asking the judges to ensure marriage rights for all and Schaerr asking them to preserve "man-woman" marriage.

On Dec. 20, U.S. District Court Judge Robert J. Shelby’s Dec. 20 ruled in favor of the plaintiffs, finding that Utah’s ban against same-sex marriage is unconstitutional.

More than 200 people — a majority same-sex marriage supporters — attended Thursday’s hearing, packing two different courtrooms.

In an overflow courtroom, spectators reacted animatedly to a live feed of the arguments, cheering, mumbling, nodding and shaking their heads throughout the proceeding. Decorum prevailed in the main courtroom.

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Rep. Lavar Christensen, R-Draper, who authored the constitutional amendment approved by Utah voters in 2004, was present. So was Utah Attorney General Sean Reyes, who sat with the state’s hired legal team.

Before the judges were seated, Reyes approached the three same-sex couples who challenged Utah’s law — Derek Kitchen and Moudi Sbeity; Karen Archer and Kate Call; and Laurie Wood and Kody Partridge — and said he recognized that the legal fight has created hardship for them.

Reyes told media after the hearing that he offered best wishes and apologized "if they were feeling pain."

"I wanted them to know it wasn’t personal," Reyes said. "I wanted them to appreciate that I recognize their families are as important to them as my family is to me."

Kitchen said he appreciated the gesture, but "I don’t fully understand his position and I don’t know if I can quite grasp what it was he said to us because he is arguing against us, after all, and our lives are on the line here."

As Schaerr began his presentation, he said the issue was not how emotional or difficult the question of same-sex marriage is but whether states can define marriage for themselves. The U.S. Supreme Court has never recognized a broad fundamental right to marriage, he said, despite its ruling in U.S. v. Windsor last summer, which struck down a section of the federal Defense of Marriage Act.

Instead, Schaerr argued the Windsor decision affirmed state authority to define marriage — something he said Shelby and eight other federal district judges who have ruled against bans got wrong.

Lucero told Schaerr he was not "fully persuaded that your view of federalism is the only touchstone of that case."

And Holmes pointed out that the Windsor decision twice made the point that a state’s right to regulate marriage is subject to constitutional provisions.

Lucero was particularly concerned about how Utah’s ban affects children and gay couples who move to the state after being validly married elsewhere.

How can the state’s position be squared with the argument marriage is a child-centric institution? Lucero asked.

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