Federal appeals judges hearing Utah gay marriage case in Denver appear divided

DENVER - A three-judge panel appeared sharply divided during a hearing over whether to uphold a lower court's ruling that struck down Utah's ban on gay marriage.

The swing vote in the case appears to be Judge Jerome Holmes, who had pointed questions for both sides. He compared Utah's same-sex marriage ban to Virginia's ban on interracial marriages that was struck down by the Supreme Court in 1967.

But Holmes also challenged the plaintiff's attorneys to explain why the state's voters should be prevented from defining marriage the way they want.

"Obviously, there are judges who are sympathetic to the discrimination we face and judges who are not," said Pamela Thiele who lives in Colorado, but attended the hearing as a gay rights advocate with her wife, Lauren Fortmiller. "Our rights vary state to state. It can just make you crazy."

Utah's lawyer said the state has the authority to define marriage in a traditional way even though other states have defined it differently.

"I wanted them to appreciate that I recognize that their families are as important to them as my family is to me," said Utah attorney general Sean Reyes, who says he reached out to the plaintiffs before the hearing to thank them for their 'professionalism and civility.'
"This case, fundamentally, is about the right for a state like Utah to determine something as significant as marriage through the democratic process," said Reyes.
The plaintiffs' lawyers argued that Utah's gay-marriage ban clearly singled out gays for unequal treatment, which is forbidden by the Constitution.
"The judge's gave our case serious consideration and it's an honor to have them take our case," said one of the Utah plaintiffs, Derek Kitchen. "It's hard to hear people argue against us because we are loving and committed individuals that have committed to one another. Our lives are on the line here."
Utah's case is the first gay marriage case to reach an appellate court since the U.S. Supreme Court shook up the legal landscape with a ruling last year.

Since then, eight federal judges have struck down gay marriage bans or ordered states to recognize same sex marriages from other states.

"Every one of the three judges clearly had read all of the material," said attorney Peggy Tomsic who argued against the ban. "And to have read 300-plus pages of our briefs, over 40 amicus briefs is just an incredible task."

The 10th Circuit Court of Appeals panel in Denver is reviewing a trial court judge's ruling that struck down Utah's gay marriage ban. A decision is not expected for several months.

"The questions they asked of us were the most relevant questions that you could ask," Tomsic added.

Legal experts expect the U.S. Supreme Court to have the final word on the matter.

"There are thousands of same-sex couples across this country that are affected by similar anti-gay laws and marriage discrimination laws," Derek Kitchen said outside the courthouse after the hearing. "I think I speak for a number of couples when I say that it's hard to hear people argue against us because we are loving and committed individuals that have committed one another emotionally, spiritually to our partners so it's a difficult thing to hear when they're arguing against us."

Arguments about Oklahoma's same sex marriage ban will also be heard in Denver next week, but it could be months before the judges issue a ruling.

"My gut feeling is that we are on the right side of history," Kitchen said. "Now we just need to wait for the decision to come down from the judges."

Print this article Back to Top