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(Keith Johnson | Tribune file photo) Hundreds of people gather outside the Salt Lake County clerks office, Friday, December 20, 2013 waiting to apply for marriage licenses after a federal judge in Utah Friday struck down the state’s ban on same-sex marriage, saying the law violates the U.S. Constitution’s guarantees of equal protection and due process.
Appeals court to hear arguments on Utah’s same-sex ban
10th Circuit Court » Utah is appealing a federal judge’s ruling that Amendment 3 is unconstitutional.
First Published Apr 09 2014 01:01 am • Last Updated Apr 09 2014 10:06 pm

The researching, the writing and the prepping are over. For the attorneys on opposing sides of Utah’s same-sex marriage debate, it’s time to deliver.

On Thursday morning, a three-judge panel at the 10th U.S. Circuit Court of Appeals in Denver will hear from the lawyers as they present the first appellate case in the nation on gay marriage rights since last summer’s landmark U.S. Supreme Court ruling, which struck down a provision in the federal Defense of Marriage Act.

At a glance

A case in motion

March 25, 2013: Complaint filed in U.S. District Court for Utah on behalf of Derek Kitchen and Moudi Sbeity; Kate Call and Karen Archer; Laurie Wood and Kody Partridge.

Dec. 4, 2013: Oral arguments in Kitchen v. Herbert before U.S. District Court Judge Robert J. Shelby.

Dec. 20, 2013: Shelby grants summary judgment to plaintiffs, finding Utah’s Amendment 3 and other laws banning same-sex marriage unconstitutional.

Dec. 20, 2013: State files first of three appeals with 10th U.S. Circuit Court of Appeals in Denver; also requests hearing before Shelby on stay.

Dec. 23, 2013: After hearing arguments, Shelby denies state’s request for a stay. The 10th Circuit, in two rulings, also denies stay request.

Dec. 24, 2013: The 10th Circuit denies stay but agrees to hear appeal.

Dec. 31, 2013: State files stay application with U.S. Supreme Court. It is assigned to Justice Sonia Sotomayor, who oversees the 10th Circuit.

Jan. 6, 2014: At 8:32 a.m. MST, the U.S. Supreme Court stays Shelby’s ruling while Utah appeals it.

Jan. 8, 2014: Utah Attorney General Sean Reyes announces it will “freeze” the approximately 1,200 marriages that took place between ruling and stay decision and not recognize them.

April 10, 2014: The 10th Circuit hears arguments in Kitchen v. Herbert.

A look at marriage laws in 10th Circuit states

There are six states, including Utah, within the jurisdiction of the 10th U.S. Circuit Court of Appeals. Here’s the status of marriage equality in the circuit’s five other states:

Colorado: In 2013, the state approved civil unions. A constitutional amendment bars marriages of same-sex couples.

Kansas: A constitutional amendment adopted in 2005 prohibits same-sex marriage and recognition of marriages performed in other states. In February, the state Legislature adopted a law protecting the right of religious individuals, groups and businesses to refuse service to same-sex couples.

New Mexico: In December 2013, the New Mexico Supreme Court ruled that nothing in state law bars same-sex marriage.

Oklahoma: In 2004, voters approved a constitutional amendment banning same-sex marriage and recognition of marriages performed in other states. On Jan. 14, a federal judge ruled the state’s ban is unconstitutional. The 10th Circuit will hear an appeal April 17.

Wyoming: In 1977, the state Legislature approved a statute that bars same-sex marriage or recognition of marriages performed in other states. A movement to add that ban to the state’s constitutional has failed so far.

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Attorney Gene C. Schaerr, representing Utah, will argue that lawmakers and voters, not judges, have the right to decide who can marry and will lay out what the state says are rational reasons behind its decision to limit marriage to only a man and a woman. Among those reasons: the best interests of children; promotion of responsible procreation; and avoiding increased religious and social strife.

Attorney Peggy A. Tomsic, representing the plaintiffs, will share with the judges the "human reality" at the heart of the case and explain how the ban on gay marriage has "cemented" discrimination against same-sex couples, particularly those rearing children — a prohibition that cannot stand under the U.S. Constitution’s equal-protection and due-process clauses.

Some legal observers describe the randomly selected panel that will hear Utah’s appeal as "slightly conservative." They are Judge Paul Kelly Jr. and Judge Jerome Holmes, both nominated by Republican presidents, and Judge Carlos Lucero, nominated by a Democrat.

Holmes was one of two judges who denied a series of requests from Utah for a stay of U.S. District Court Judge Robert J. Shelby’s Dec. 20 ruling that the state’s ban on same-sex marriage is unconstitutional.

The hearing to either uphold or strike down Shelby’s ruling will be the second of three possible rounds in Utah’s battle over marriage equality, and it is being closely watched as a precedent for what might happen elsewhere.

"For months now, the action on same-sex marriage has been in the federal district courts," said Stephen Wermiel, an American University Washington College of Law professor. "With the argument in the 10th Circuit this week on the Utah law, and next week on the Oklahoma law, the same-sex marriage issue moves one step closer to the U.S. Supreme Court, where it seems inevitable that the justices will eventually have to decide whether couples of the same sex have a right to marry."

The first round in Utah went to the three same-sex couples — Derek Kitchen and Moudi Sbeity; Kate Call and Karen Archer; and Lauri Wood and Kody Partridge — who challenged Utah’s Amendment 3. Some 1,200 couples married before Shelby’s decision was stayed 17 days later by the U.S. Supreme Court.

Tomsic and James E. Magleby, who are being joined in the appeal by attorneys from the National Center for Lesbian Rights, are confident they’ll prevail again in Denver.

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"When you look at the law ... there is no legal justification for the other side," Magleby said in a recent interview with The Salt Lake Tribune.

But Utah’s attorneys say Shelby is an activist judge who misinterpreted and misapplied the law.

"The legal question at issue is not the fundamental right of same-sex couples to enter into exclusive and permanent relationships, raise children, or bequeath property at their death," said Utah Attorney General Sean Reyes in a February statement. "Utah law already gives those rights. The constitutional question is whether it is reasonable for Utah’s citizens to believe that a child benefits most from being raised by his or her biological mother and father in a permanent relationship, and that such relationships should therefore be encouraged through recognition as marriages."

In its briefs, the state argues vehemently that social science research shows parenting by same-sex couples is inferior to that of opposite-sex couples. But findings of a primary researcher relied on by the state were flayed last month in a ruling for marriage equality by a federal judge in Michigan, who said Mark Regnerus’ testimony was "entirely unbelievable and not worthy of serious consideration."

In a letter filed with the 10th Circuit on Friday, Schaerr said that decision, as well as one in Tennessee, are wrong and their findings irrelevant to the Utah case, but pointed out that the Michigan judge did not dispute that the debate over parenting quality has not been proved with scientific certainty.

"That failure of proof," Schaerr wrote, "buttresses Utah’s conclusion that there exists at least a risk that, over the long run, children raised by same-sex couples will do worse than children raised by man-woman couples."

Reyes, who will travel to Denver with the three attorneys hired by the state to defend Utah’s law, declined interview requests before Thursday’s hearing.

What the state has emphasized in its voluminous filings with the court is that Shelby’s decision, which held that gay couples have a fundamental right to marry, is a "judicial wrecking ball" that takes away the right of lawmakers and citizens to decide for themselves how marriage should be defined. Utah’s attorneys also point to the fact that Amendment 3 was approved by 66 percent of voters who participated in the 2004 general election.

Marriage-equality proponents say that while states have a role to play in regulating marriage, that role is confined by constitutional protections — as demonstrated in Loving v. Virginia, the U.S. Supreme Court’s 1967 decision ending bans on interracial marriage that were approved by lawmakers and voters.

And more current assessments of public opinion, including one by The Tribune, show a significant shift in support for marriage equality during the past decade.

The Tribune’s statewide poll, conducted in January, shows residents are evenly split 48-48 on whether same-sex couples in Utah should be allowed to get state-issued marriage licenses, and 72 percent support access to civil unions or domestic partnerships.

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