Tenth Circuit ‘Appears Divided’ on Challenge to Utah Gay Marriage Ban

Plaintiffs following the hearing via Chris Johnson Twitter.

As we reported earlier, a three-judge panel at the Tenth Circuit Court of Appeals in Denver today heard arguments in Kitchen v. Herbert, the case challenging Utah's gay marriage ban.

The AP has an early take:

One of the judges, Carlos F. Lucero, compared the state's argument that the ban should to the U.S. Supreme Court's infamous Dred Scott decision that denied citizenship and constitutional protections to blacks before the Civil War. "To argue that public policy can trump a declared constitutional right would be a remarkable proposition," Lucero said.

But Judge Paul J. Kelly Jr. suggested Utah does have the right to reaffirm what has been a centuries-long tradition of heterosexual marriage. "You are just taking the position they are wrong on this. …. We'll just ignore what the people have decided and the Legislature has done," Kelly said.

The swing vote in the case appears to be justice Jerome A. Holmes, who sharply challenged attorneys for both sides.

More from the Denver Post:

Gene Schaer, the attorney representing the state of Utah, 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.

Peggy Tomsic, a lawyer at the private Salt Lake City firm of Magleby & Greenwood who argued for the plaintiffs released a statement through NCLR:

“We are grateful that the Tenth Circuit has moved quickly in handling this appeal, which affects thousands of families in Utah who seek equal dignity and full legal recognition of their families. We are confident that the judges will give this important case the consideration it deserves, and we look forward to the court’s decision.“

More to come as this develops…