Judge hears arguments in case challenging Utah's gay marriage ban

Lawyers for the three couples who are the plaintiffs in the case say the ban is based on 'prejudice and bias'

Utah's case is contentious because the Church of Latter Day Saints, based in the state, strongly denounces gay marriage.
Mario Tama/Getty

A federal judge in Utah, one of America's most conservative states, heard arguments Wednesday in a case brought against the state's same-sex marriage ban.

An attorney for three gay couples argued that the court should strike down Utah's same-sex marriage ban because a precedent was set by the U.S. Supreme Court when in June it declared unconstitutional part of the Defense of Marriage Act, which had declared marriage between a man and a woman.

Utah voters approved an amendment to the state's constitution in 2004 that defined marriage as solely between a man and woman. The couples first filed the lawsuit in March, the Salt Lake City Tribune reported. 

Though more than 40 similar court challenges to same-sex marriage bans are pending in 22 states, Utah's is among the most closely watched because of the state's history of staunch opposition to gay marriage, said Jon Davidson, director of Lambda Legal, which pursues litigation on a wide range of Lesbian Gay Bisexual and Transgender (LGBT) issues across the country.

Utah is home to The Church of Jesus Christ of Latter-day Saints, or the Mormon Church, which believes homosexuality is a sin. The state was among the first to pass an amendment banning same-sex marriage, Davidson said.

"Utah has a particularly symbolic position in the history of the struggle of same sex couples to be able to marry," Davidson told The Associated Press.  

According to the Tribune, the couples' names are: Derek Kitchen and Moudi Sbeity; Laurie Wood and Kody Partridge; Karen Archer and Kate Call.

During a nearly four-hour hearing in U.S. District Court in Salt Lake City — in front of an audience of about 100 people — Peggy Tomsic, one of the lawyers for the plaintiffs, contended that marriage is a fundamental right protected by the U.S. Constitution.

"This case embodies the civil rights movement of our time," Tomsic said. "This is the time and this is the place for this court to make it clear that the 14th Amendment is alive and well, even in Utah."

The Mormon Church, a prominent figure in the same-sex marriage debate in Utah, helped fund the battle to ban same-sex marriage in California. The measure passed there in 2008, prompting a long legal battle that culminated in the U.S. Supreme Court declaring it unconstitutional in 2012. In the Utah case, U.S. District Judge Robert J. Shelby heard arguments from both sides as he weighed what will be a precedent-setting decision that he is expected to make by early next year. 

His ruling would be the first on a state same-sex marriage ban since the Supreme Court's DOMA ruling.  

Attorneys for the state of Utah asserted it is not the court's job to determine how a state defines marriage, and that the Supreme Court ruling doesn't give same-sex couples the universal right to marry.

'Responsible procreation'

The state argues that it has a right to foster a culture of "responsible procreation," and the "optimal mode of child-rearing," which the state believes its constitutional amendment on marriage does.

"There is nothing unusual about what Utah is doing here," said Stanford Purser of the Utah Attorney General's Office, objecting to the notion that the law is rooted in bigotry or hatred.

"That's the nature of legislation: You draw lines and make designations."

At the hearing, Judge Shelby, who took the bench in September 2012, asked dozens of questions to both attorneys. He said afterward that he had his "hands full" with the case but vowed to do his best to make a ruling by early January.  

Shelby grilled the state's attorneys on the connection between banning same-sex marriage and the number of babies born to heterosexual couples.  

"How is it by excluding same-sex couples from marrying you're increasing procreation?" Shelby asked.

Purser declined to answer directly, saying the issue was irrelevant in this case. Pressed, he said nobody knows yet the effects of same-sex marriage on heterosexual marriage.  

Shelby also questioned if having children is essential to a person being able to take advantage of the constitutional right to marriage, proving his point by asking the state attorneys if Utah would consider giving fertilization tests before granting marriage licenses.

He also asked how allowing a heterosexual post-menopausal woman to marry was different than allowing a gay or lesbian couple to wed.  

Philip Lott of the Utah Attorney General's Office said the state wouldn't give fertilization tests and said a post-menopausal woman may still raise a grandchild or niece or nephew.

Tomsic scoffed at the state's rationale of promoting procreation, saying there is no evidence to suggest banning same-sex marriage has any effect on whether men and women have children.

She also took exception to the idea that same-sex couples can't provide stable, loving homes for kids. She said an estimated 3,000 Utah children are being raised by gay and lesbian parents who are suffering because of the state's law.

"These kids every day of their lives are facing a social stigma," Tomsic said.

"The harm is immense in this state."

Shelby questioned why harm should be considered in his judgment, and also said that Tomsic's interpretation of the 14th Amendment was overly simplistic.

The judge also asked why he should overturn what nearly two-thirds of Utah voters decided was best for the state nearly a decade ago.

Five of the six people who brought the lawsuit attended the hearing. One could not attend due to illness.

Tomsic said one of the couples was legally married in Iowa and just wants that license recognized in Utah.

She said the couples work and contribute to society and deserve equal rights in the state where they live, no matter how the law came to be.

Utah's law is "based on prejudice and bias that is religiously grounded in this state," Tomsic said.

Al Jazeera and The Associated Press

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