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

Plaintiffs
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…

Comments

  1. sjaeger says

    The tenth circuit may be our trigger case which would force it to the Supremes if they decide for Utah. I think that the SCOTUS will not touch the issue unless there is a dissenting opinion between the circuits. Although I’m pleased they did refuse to take the photographer’s case about desire to legally discriminate. My feeling is that the SCOTUS wants to play Pontius Pilate.

  2. Ted says

    “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 .” LOL. So all those kids adopted by straight couples have a high chance of becoming criminals. Interesting.

  3. Håkon says

    I always hate how long these cases take to get decided. We’re hearing arguments now, but the court will probably take several months to issue the ruling, right?

  4. Francis says

    Things playing out as predicted. Kelly is on Utah’s side, Lucero is on the side of marriage equality. Holmes gave hints he would side for marriage equality, but then walked those back with some other comments. He did bring up interracial marriage and racial/gender comparisons, that Utah’s marriage ban may qualify as discrimination based on sex.

    About what everyone expected.

  5. Junes says

    That we’re having to beg for basic civil rights (like opportunity to marry the one we love) shows the sad prejudice against same sex couples that still exists in society.

  6. reality says

    YOU HAVE GOT TO BE KIDDING ME!!!!! That is an absolute slap in the face of all adopted and foster families, not to mention children raised by grandparents, aunts, uncles, siblings…. “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.”

  7. Bernie says

    I sure would love to see the research that these folks use that says children of gay parents have more criminal behavior! yikes! lies! lies! lies!

  8. Randy says

    I thought that our side was a bit weak defending the “animus” thing. While it’s clear to mean that Utah’s “animus” was absolutely related to bigotry (if not anti-gay, then at least anti-non-Mormon), the Supreme Court made clear that animus need not come from bigotry, but from simple lack of interest or care. (I don’t have the reference with me..sorry)

    But I really like the trap that our opposition gleefully walked into. In the comparison of anti-marriage laws to Dred Scott, the guy as much as admitted that Dred Scott would be OK with him if Congress said it was (similar to DOMA Section 2).

    That’s astounding.

  9. TKinSC says

    “‘To argue that public policy can trump a declared constitutional right would be a remarkable proposition,’ Lucero said.”

    Sure. But luckily for Utah, the Supreme Court has never declared gay “marriage” to be a constitutional right.

    “One of the judges, Carlos F. Lucero, compared the state’s argument that the ban should [sic] to the U.S. Supreme Court’s infamous Dred Scott decision that denied citizenship and constitutional protections to blacks before the Civil War.”

    Dred Scott was good law that it took a constitutional amendment (actually three) to undo. When the Gay Marriage Amendment gets ratified, the plaintiffs will have a case. Until then, the judgment of the district court is REVERSED.

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