DENVER — Sharp questioning Thursday by a divided panel of appellate judges considering Utah’s ban on gay marriages showed that, while same-sex marriage has had a remarkable winning streak lately, its legal status remains uncertain.

The three judges of the 10th Circuit Court of Appeals were divided over how much the landscape has changed since the U.S. Supreme Court last year struck down the Defense of Marriage Act. The high court found that the law violated gay couples’ due process rights by forbidding the federal government from recognizing their marriages.

An attorney representing three Utah gay couples argued that meant any state law that bars gays from something as fundamentally important as marriage should be voided. Eight federal judges have, to varying degrees, agreed since the Supreme Court ruling, striking down a series of state gay marriage bans, or bans on recognizing same-sex marriages from other states.

One of those judges in December struck down Utah’s 2004 voter-approved gay marriage ban, and it was the appeal of that ruling that the randomly selected three-judge panel heard Thursday. It is the first time gay marriage has reached the appellate court level since the Supreme Court’s ruling in June 2013.

Judge Carlos Lucero cited gay marriage’s legal success and compared the state’s argument that the ban should stand to the Supreme Court’s infamous Dred Scott decision that denied citizenship and constitutional protections to blacks before the Civil War.

“The law does not allow the type of discriminatory behavior that is at issue in these type of cases,” Lucero said.


But Utah’s attorney argued that the Supreme Court left the definition of marriage to states, and that the lower court judges have erred. Judge Paul J. Kelly Jr. suggested Utah’s voters 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 told Peggy Tomsic, who represented the plaintiffs. The swing vote in the case appeared to be Judge Jerome A. Holmes, who had pointed questions for both sides. He compared Utah’s same-sex marriage ban to Virginia’s ban on interracial marriages, which the Supreme Court struck down in 1967.

That law “made that mixed-race couple essentially an ‘other’ for the purposes of marriage,” Holmes said. “Why is that any different from this situation?”

But in addressing the plaintiffs’ attorneys, Holmes said gay marriage is a new and novel concept, and courts should defer to the democratic process unless there are pressing reasons to intervene.

“What Utah has done is validated what has been historical practice forever,” he told Tomsic.

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


Gene Schaerr, who represented Utah, warned that if the state could not define marriage the way it wanted, it might have to open the door to polygamy. But under questioning, he acknowledged the ban harms children of same-sex couples and that the state has no scientific evidence showing gays are worse parents than heterosexuals.

Still, he said, legal precedent allows the state to define marriage. “Governments are entitled to legislate on the basis of risks that they perceive to their population,” Schaerr argued.

The legal sparring took place in a packed courtroom filled with dozens of spectators who waited hours for a seat, as well as the three couples who filed the initial lawsuit, and Tomsic’s wife and their son.

More than 1,000 gay Utah couples married in the days after the December decision, until the Supreme Court stayed the ruling.

Derek Kitchen, one of the plaintiffs, said the debate has been painful. “It is hard to hear people argue against us, because we are loving individuals who have committed ourselves to our partners emotionally and spiritually,” he said, embracing his husband, Moudy Sbeity.

But Kitchen said he remained optimistic. “We are on the right side of history,” he said.

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