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Schaerr argued that at the core of these cases is the question of whether states can define marriage for themselves. Utah’s position is that they can.
He also argued that having a both mother and father is essential to the success of children. But on the eve of Utah’s 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.
A look at the cases
On Thursday, the 10th Circuit Court of Appeals will hear its second case in as many weeks challenging a state ban on same-sex marriage. Experts have said the Utah and Oklahoma are remarkably similar. Here are some key differences:
» Oklahoma’s case, filed by Sharon Baldwin and her partner of 17 years, Mary Bishop, has been pending for nearly a decade. Utah’s case was filed last year.
» More than 1,300 gay and lesbian couples were legally married in Utah after the ban was overturned. The federal judge in Oklahoma immediately issued a stay, preventing a similar circumstance.
» The issue of marriage recognition — for couples who wed in other states where gay marriage is legal — remains up in the air in the Oklahoma case. The district court found it could not rule on that part of the lawsuit because the Tulsa County clerk, who was sued, does not have the authority to recognize such unions. Utah’s lawsuit named the governor, attorney general and Salt Lake County clerk in its suit, eliminating this question of proper authority. The Oklahoma couple suing for marriage recognition are appealing their case.
Oklahoma makes similar claims in its briefs to the court, which, experts said, may be fodder for the judges come Thursday.
Tomsic argued that every major psychological and sociological organization has come to the exact opposite conclusion regarding children.
She also noted that same-sex couples raise — and have been raising — children together for years. She argued restrictions on civil marriages disenfranchise these families and ultimately harm these children.
Among the chief differences between the two states is the fact that some 1,300 same-sex couples in Utah were allowed to marry in the 17 days after Shelby’s ruling and before the U.S. Supreme Court granted the state a stay that halted the weddings.
If the 10th Circuit Court of Appeals rules in favor of the plaintiffs in both cases, that would effectively outlaw bans on same-sex marriages in Utah, Oklahoma, Colorado, New Mexico, Wyoming and Kansas.
But whichever way the circuit court rules, it is likely the judges will stay their decision until the U.S. Supreme Court rules on the question.
Oklahoma’s arguments before the 10th Circuit Court of Appeals begin Thursday at 1:30 p.m.
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