DENVER — A three-judge panel appeared sharply divided as they questioned attorneys Thursday at a hearing over whether to uphold a lower court’s ruling that struck down Utah’s ban on gay marriage.

One of the judges, Carlos F. Lucero, compared the state’s argument that the ban should overruled 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.

The hearing comes after a remarkable winning streak for gay marriage supporters, who in the past nine months persuaded federal judges to strike down eight states’ bans on gay marriage or on recognizing gay marriages from elsewhere.


Those rulings, including the Utah one under discussion Thursday and a similar one in Oklahoma that will be heard before the same panel next week, came after the U.S. Supreme Court struck down the Defense of Marriage Act last summer. The high court found that the law violated gay couples’ due process rights by preventing the federal government from recognizing their marriages.

More than 1,000 gay couples got married in Utah after the December ruling that struck down that state’s 2004 voter-approved gay marriage ban. The weddings ended only when the Supreme Court stayed the trial court’s ruling pending the appeal to the 10th U.S. Circuit Court of Appeals in Denver.

The three-judge panel is not expected to rule for several months. The losing party can appeal that decision to the full 10th Circuit or directly to the Supreme Court. Though Utah’s case is the furthest along, similar gay marriages cases also are working their way through at least four other federal appeals circuits. It is unclear which would reach the high court first.

The same three judges are scheduled to hear Oklahoma’s appeal on April 17.

Holmes was appointed by President George W. Bush. He initially voted against staying the trial court’s ruling, which allowed more than 1,000 gay couples to wed in Utah in December before the Supreme Court stepped in and stayed the initial ruling.

Lucero was appointed by President Bill Clinton, and Kelly was appointed by President George H.W. Bush.

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