As red numerals ticked away the minutes on a digital timer, lawyers fielded a barrage of questions from three federal appeals-court judges considering Utah’s ban on same-sex marriage.
In a rapid-fire series of exchanges, the 10th U.S. Circuit Court of Appeals judges repeatedly interrupted the lawyers and, at times, even one another. They directed Thursday’s discussion toward the role of parents in rearing children, the constitutional rights of gay couples and the right of states to govern their own affairs.
The oral arguments in the Kitchen vs. Herbert case marked the first time that a state has defended its gay-marriage ban at the federal appellate level. It could take months for the judges to issue a ruling, and legal experts expect that the issue eventually will wind up before the U.S. Supreme Court. Scores of gay-marriage supporters and traditional-marriage supporters have submitted friends-of-the-court briefs.
“I’m thrilled to be here with my partner,” said Derek Kitchen, kissing Moudi Sbeity outside the Byron White U.S. Courthouse in downtown Denver. “It was difficult to hear people arguing against us.”
About 100 spectators packed into the ornate courtroom with navy-blue carpet, wood molding and a glass-tiled ceiling with gold designs decorated with the seal of the United States. The three gay and lesbian couples who filed the lawsuit sat on a bench behind their attorneys’ table. They often smiled and squeezed each other’s shoulders.
An attorney for each side took turns standing at a lectern with the timer. Both were allowed to speak beyond the allotted 15 minutes, partly because of interruptions from the judges.
Two of the three justices on the panel seemed to telegraph their political inclinations with their questioning, while Jerome Holmes asked tough questions of both sides. Though appointed by President George W. Bush, Holmes and another circuit judge refused to stay a decision by a federal judge who found Utah’s gay-marriage ban unconstitutional. It allowed 1,335 gay and lesbian couples to marry before the U.S. Supreme Court temporarily restored the ban.
Judge Carlos F. Lucero, appointed by President Bill Clinton, frequently interrupted Gene Schaerr, an attorney for Utah who was the first to give oral arguments. Although Schaerr tried several times, he could never finish a four-tiered definition of marriage, which appeared to be a highlight of his argument.
When plaintiffs attorney Peggy Tomsic came to the podium, Judge Paul J. Kelly Jr., who rarely asked Schaerr questions, bored in, frequently cutting Tomsic off midsentence. Kelly was appointed by President George H.W. Bush.
At one point, Lucero even interrupted a question by Kelly, who wanted Tomsic to explain whether there was something wrong with a state legislature defining its own state law. Before Tomsic could answer, Lucero asked whether constitutional law didn’t trump state laws.
Tomsic smiled at Lucero’s softball pitch and answered that constitutional law trumped legislative decisions when state laws infringe on the rights of U.S. citizens. Tomsic’s chief argument was that Utah’s ban on gay marriage violated the 14th Amendment of the Constitution.
And so the hearing went.
Lucero asked Schaerr how Utah would treat children of a same-sex couple married in a state that allows gay marriages. The judge said it seemed to contradict Utah’s argument that the welfare of children was a major concern.
While acknowledging that children would be better off if their same-sex parents were married, Schaerr said it would likewise be better for thousands of children in polygamist households if they were allowed to legally marry.
“Let’s not talk about polygamy. Let’s talk about gay marriage,” Lucero said, setting off a peal of laughter through the courtroom.
Schaerr said the government has a legitimate interest in encouraging heterosexual marriages between a child’s biological parents. Allowing same-sex marriages would dilute that message, he said. A lesbian couple could conceive a child through artificial insemination and the child would not have a masculine role model, he said.
Schaerr told justices a key risk of gay marriage is that children are raised by someone other than their natural parents and that those children have a higher rate of criminal behavior. He said it also changes the primary role of marriage from being child-centric to adult-centric.
Later in the hearing, Kelly brought up polygamy again. He asked Tomsic why she would discriminate against polygamist households, if everyone has a right to marry.
Tomsic argued the gay-marriage ban violates the rights of only one class of citizen — same-sex couples.
“Every day, same-sex families face the stigma and harm of being treated like second-class citizens,” Tomsic said.
After the hearing, Utah Attorney General Sean D. Reyes spoke with Kitchen and Sbeity. He said he told them the case was not intended to be personal.
Reyes also said the federalism argument will be the key to the court’s decision.
“We didn’t create a second class of people to harm them,” he said.
The same panel of judges will hear oral arguments in Oklahoma’s gay-marriage case next Thursday. Colorado has two same-sex marriage cases.
Kirk Mitchell: 303-954-1206, denverpost.com/ coldcaseskmitchell or twitter.com/kmitchelldp
Source: The Denver Post, “10th Circuit arguments on gay marriage ban focus on family, fairness,” By Kirk Mitchell, Posted: 04/10/2014 08:17:52 AM MDT | Updated: about 10 hours ago