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Denver judges appear divided on Utah same-sex marriage case

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

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Schaerr admitted that the children of gay and lesbian couples would be better off if their parents could marry. But, he said, so would the children of the 40,000 or so polygamous families in Utah.

All laws, Schaerr said, create classifications that disadvantage some groups more than others.

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"In this case, children," Lucero said. "Doesn’t [the law] stigmatize those children? And isn’t that precisely the concern that Justice [Anthony] Kennedy recognized in Windsor?"

Schaerr’s answer: "There is no question there are trade-offs in policies like this" but it comes down to "what are the state’s interests and are those interests sufficient to retain Utah’s definition of man-woman marriage?"

Adopting a "genderless" definition of marriage would send a message that a "mom and a dad" aren’t important and would tell heterosexual men that "we don’t need you to have a happy marriage, a productive marriage because we set up this alternative arrangement where two women can get married and get impregnated."

Holmes asked Schaerr why the state was "backpedaling" from one researcher’s work that concluded same-sex parents are inferior to opposite-sex parents.

On the eve of the hearing, Schaerr filed a letter with the court distancing the state from research by Mark Regnerus of the University of Texas, which Utah used in its briefs to bolster the claim that opposite-sex parenting is the "gold" standard for children. The letter said Regnerus’ work was of "limited relevance" to Utah’s key claims and acknowledged what many social science researchers and a federal judge in Michigan recently concluded: Due to flawed methodology, the study "cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements."

The judges prodded both Tomsic and Schaerr about what standard to use in evaluating whether Utah’s law is discriminatory. At the lowest level of review, the state must show only that there is a rational basis for its law.

At the highest level, the state must prove its law does not hurt a group deserving of special protections similar to those afforded minorities and women.

Tomsic said while there is an assumption that state laws are based on legitimate, rational interests, legislation may not be "based on flimsy rationales that have no footing in reality" — which the plaintiffs say is the case in Utah. She also said Windsor "trumps" the state’s argument that its laws are subject to rational review and instead said courts must apply "careful consideration" when deciding whether the "design, purpose and practical" effect of a law is to harm a group of people.

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That drew a challenge from Kelly, who said that animus can’t be assigned to legislative acts done for the good of a whole community.

That in turn drew a pointed response from Lucero, who said, "To argue that public policy can trump declared constitutional rights would be a remarkable constitutional proposition, not just in Utah or Colorado but anywhere in the nation."

Kelly also asked Tomsic whether the case should be sent back to the district court for a trial to sort out disagreement on what standard applies and the conflicting social science perspectives presented.

Tomsic said the same interests claimed by Utah were presented to justify the Defense of Marriage Act and, without a trial, the U.S. Supreme Court found no justifications that overcame the disadvantages and harm the act imposed on children.

She also said the state provided no study to support its primary claim "that same-sex parenting is not as good as what they call man-woman marriage."

Every major psychological and sociological organization, she said, has come to the opposite conclusion.

Tomsic centered her argument around the Fourteenth Amendment guarantee of due process and equal protection, noting that "the people of this nation wanted to ensure that no state could treat people unequally or deprive them of fundamental rights or liberty interests."

Holmes also was curious about why the plaintiffs sued the attorney general and governor of Utah rather than county clerks tasked with issuing marriage licenses.

Tomsic said that was because the "state has taken the position that it can, in fact, and it does direct what county clerks do."

After the hearing, Tomsic and Reyes met with media on the courthouse steps and both expressed that their side would prevail.

"We look forward to a swift decision, and have confidence that these judges will give this case the serious consideration it deserves and we look forward to bringing marriage equality to Utah and the rest of the 10th Circuit," Tomsic said.

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