ST. GEORGE – Utah’s Amendment 3, defining marriage as between a man and a woman, was the focus of oral arguments heard before three federal appeals judges Thursday.

The players

The judges who heard the arguments are Paul J. Kelly, Jr., Carlos F. Lucero, and Jerome A. Holmes, of the U.S. 10^th Circuit Court of Appeals that serves Oklahoma, Kansas, New Mexico, Wyoming and Utah.

Arguing for Amendment 3 on Utah’s behalf was Gene C. Schaerr. Representing three same-sex couples who brought the initial lawsuit against Utah’s same-sex marriage ban was Peggy A. Tomsic.

Utah’s argument

Schaerr, who addressed the judges first, argued that children benefit more from having married, heterosexual parents, and not same-sex parents. He also argued the state has the right to define what marriage is.

As reported by Fox 13, Holmes asked Schaerr how Amendment 3 was any different from interracial marriage bans of the 1960s, and referenced the “Loving v. Virginia” case during his questioning.

“What barred them from getting married was race. And in this instance, why is that any different? You have a man who wants to marry another man. The only thing that bars him from getting married is gender,” Holmes said.

Schaerr answered that in that case, the U.S. Supreme Count’s decision did not intrude on a state’s authority to define marriage, as the interracial marriage ban was a regulatory exclusion.

Utah promotes heterosexual marriage because it believes that is what is best for children, Schaerr said, The Washington Post reports. He also said children do best when raised by a father and a mother, and that marriage should be centered around children. Those who challenge Amendment 3 see marriage as more centered around their own desires, he said.

Lucero did not appear to buy the argument.

“Why is a heterosexual couple more likely to get married if a gay couple is not allowed to get married?” Lucero asked.

Plaintiffs’ argument

Tomsic argued Utah’s same-sex marriage ban violates the 14^th Amendment and is discriminatory, as it focuses on a specific group.

“Every day, same-sex families face the stigma and harm of being treated like second-class citizens,” Tomsic said according to The Denver Post.

Kelly asked Tomsic about Amendment 3 being passed by a majority of Utah voters.

“Just because you disagree with the state doesn’t make it irrational, does it?” he asked, The Washington Post reports.

“We can’t just ignore what the legislature has done and say, ‘We don’t like that so your animus is bad,’” Kelly said, according to Fox 13.

Lucero chimed in, asking Tomsic it public policy had ever been allowed to outweigh constitutional rights.

“No, your honor,” she said.

Based upon the judges’ line of questioning, various media outlets have described Holmes being on the side of the state, Lucero being in favor of the plaintiffs, and Holmes being a possible swing vote. However, it has been advised that the judges vote isn’t always predictable, and can change as they continue to research the case before them.

In addition to the oral arguments, the three judges will be reviewing a horde of “friend-of-the-court” briefs filed by the supporters of both sides.

According to Fox 13, they could rule on the appeal in two-to-six months.

Amendment 3 was initially struck down on Dec. 20, 2013, by District Judge Robert Shelby, who ruled that the measure was unconstitutional, as it violated the 14^th Amendment. Following the ruling, over 1,200 same-sex couples were married across the state. The Supreme Count put a stay on Shelby’s ruling pending Utah’s appeal on Jan. 6, which effectively reinstated Amendment 3. This has left Utah’s married same-sex couples in legal-limbo, as their marriage are no longer recognized by the state.

Amendment 3 become state law in 2004 after 66 percent of voters approved the measure.

Kitchen v. Hebert, the suit that challenges Amendment 3, was brought against Utah by Derek Kitchen and Moudi Sbeity; Laurie Wood and Kody Partridge; and Karen Archer and Kate Call.

Related

• Family Research Council files friend brief with 10th Circuit Court, Utah’s marriage definition law
• Federal government announces it will recognize Utah’s same-sex marriagesUtah won’t recognize same-sex marriages
• On the EDge: Same-sex marriage isn’t dead, just on hold
• U.S. Supreme Court halts same-sex marriages in Utah
• Utah appeals to U.S. Supreme Court to halt same-sex marriages
• Tenth Circuit denies Utah’s appeal for stay on same-sex marriage ruling
• Marriage licenses issued, weddings had for same-sex couples in Washington County
• Judge denies Utah’s request for emergency stay, same-sex marriage decision

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