U.S. court seems split on Utah marriage ban

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DENVER -- The push for same-sex marriage, which has celebrated victory after victory in courtrooms across the nation, entered an uncertain stage Thursday as a federal appeals court appeared divided about whether the socially conservative state of Utah could limit marriage to a man and a woman.

In an hour of arguments inside a packed courtroom, three judges from the 10th U.S. Circuit Court of Appeals sparred with lawyers about how such bans affected the children of same-sex parents and whether preventing gay couples from marrying actually did anything to promote or strengthen heterosexual unions and families.

The three judges -- two appointed by a Republican president and one by a Democrat -- focused on fine-grained issues, such as what level of judicial scrutiny to apply to the case, as well as more profound questions of how to define a marriage and whether state bans on same-sex nuptials were akin to those against polygamy, or instead fundamentally violated the constitutional rights of same-sex couples.

While the decision will reverberate across Utah, it hardly will be the last word on whether same-sex couples have the same rights to marry as heterosexuals. Next week, the same appeals court is scheduled to hear arguments over Oklahoma's ban on same-sex marriage, which a federal judge declared unconstitutional in January. Marriage cases in several other states, including Virginia and Texas, are percolating through the courts, and the Supreme Court is widely expected to tackle the issue.

In December, Utah briefly became the 18th state to legalize same-sex marriage, when a federal judge in the state tossed out a voter-approved ban on such nuptials, one of about 11 similar prohibitions that passed in 2004.

The judge, appointed by President Barack Obama with support from conservative Utah politicians, said the ban violated the "fundamental right" of same-sex couples to marry. The prohibition, Judge Robert J. Shelby wrote, violated guarantees of due process and equal protection in the Constitution.

His ruling touched off 17 days of legal chaos, as hundreds of same-sex couples poured into county clerks' offices across the state to wed, while Utah officials scrambled to stop them and put a halt to the marriages. By the time the Supreme Court intervened and issued a stay in the case -- effectively suspending the Utah judge's ruling and temporarily reinstating the ban -- more than 1,000 same-sex couples had married, and many had changed their names, signed up for spousal health insurance and taken steps to become legal parents of children they were raising.

On Thursday, Peggy A. Tomsic, a lawyer for the three same-sex couples who had gone to court against Utah, argued in the Denver courtroom that the state's ban stigmatized same-sex couples, denying them a fundamental right for no valid reason. Gene C. Schaerr, a lawyer for Utah, argued the state's residents had the right to limit marriages to exclude same-sex couples, and said redefining it as "genderless" posed risks to a traditional view of the institution.

The judges fired a barrage of skeptical questions, questioning the state's legal team on whether banning same-sex marriage was akin to outlawing interracial unions, and skeptically asking the plaintiffs whether the state was not entitled to set its own definitions of marriage.

Judge Paul J. Kelly, nominated by former President George W. Bush, appeared more deferential to Utah's voters and its Legislature, while Judge Carlos F. Lucero, nominated by former President Bill Clinton, asked pointed questions about whether Utah was stigmatizing children of gay couples.

Legal observers said the deciding vote appeared to belong to Judge Jerome A. Holmes, nominated by Mr. Bush, who lofted tough questions at both sides. "Why does it matter who's claiming the right?" Judge Holmes asked a lawyer representing Utah. "It's a fundamental right, and why does it matter the participants in that enterprise? Why does it matter?"

Thursday's arguments signaled the first time an appeals court had considered the issue since the Supreme Court handed two major victories to gay-rights supporters last summer.

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