As the first case challenging the
constitutionality of a state's ban on gay marriage to reach an
appellate court since the Supreme Court struck down a critical
provision of the Defense of Marriage Act (DOMA) last summer,
Thursday's arguments in Denver could have far-reaching implications.
Hundreds of people gathered outside the
courtroom in a show of support for the three plaintiff couples asking
the 10th Circuit Court of Appeals to affirm a lower
court's ruling striking down Amendment 3, Utah's 2004 voter-approved
constitutional amendment defining marriage as a heterosexual union.
It is the first of two similar cases
the court is scheduled to hear. The court next Thursday will review
a ruling striking down Oklahoma's ban.
Each side was given 30 minutes to argue
its case before a three-judge panel. According to The
Salt Lake Tribune, the judges appeared split, with Jerome A.
Holmes, who is African-American, on the fence. Holmes asked how the
ban is different from previous bans on interracial marriages.
The state argued that marriage was for
two people who could procreate without the aid of a third party,
claiming children benefit from being raised in a family headed by a
mother and father.
Lawyers representing the state were
criticized for a last-ditch effort to distance their case from
research by Mark Regnerus of the University of Texas.
Regnerus is the lead author of a widely
criticized 2012 study which concluded that children are negatively
affected by having gay parents. The study was funded by the socially
conservative New Jersey-based Witherspoon Institute.
In February, he provided more than
three hours of testimony in defense of Michigan's ban. But in
handing down his ruling knocking down Michigan's restrictive marriage
amendment – and
triggering a one-day flurry of same-sex weddings – U.S.
District Court Judge Bernard Friedman called Regnerus' testimony
“unbelievable.”
(Related: Judge
in Michigan gay marriage case declares Mark Regnerus' testimony
“unbelievable.”)
Utah asked the court in a letter filed
Wednesday evening to disregard references in its written briefs to
Regnerus' work.
“The state's principal concern is the
potential long-term impact of a redefinition of marriage on the
children of heterosexual parents,” lawyer Gene C. Schaerr wrote.
“The debate over man-woman versus same-sex parenting has little if
any bearing on that issue, given that being raised in a same-sex
household would normally not be one of the alternatives available to
children of heterosexual parents.”
With eight additional marriage equality
cases teed up in various appellate courts, how the first case is
decided could influence those outcomes.