The constitutionality of banning same-sex marriage comes for the first time ever before a federal appeals court this week, as challenges pile up nationwide on an issue moving rapidly through the legal system.
A three-judge panel of the Tenth Circuit Court of Appeals in Denver will hear oral arguments Thursday about a ruling four months ago that struck down the ban on marriage for gay couples in Utah.
Permitting same-sex marriage, the state argues in its appeals court filing, would impose a new definition, "shifting the public meaning of marriage away from a largely child-centric institution."
Such a move toward a more adult-oriented view would "pose real, concrete risks to children — especially in future generations," the state says.
But lawyers for the challengers respond in their submission that laws like Utah's "do nothing to encourage opposite-sex couples to marry or have children and serve only to stigmatize and harm same-sex couples and their children."
Utah is one of 29 states whose constitutions restrict marriage to opposite sex couples. Four other states impose the same limitation by statute. Utah's provision was approved by 66 percent of state voters in 2004.
In late December a federal judge in Salt Lake City ruled in favor of three gay couples who filed a lawsuit challenging the ban, finding that it "perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition."
Roughly 1,200 gay couples obtained marriage licenses following the ruling, but the process stopped in early January when the U.S. Supreme Court granted Utah's request to put it on hold while the state pursued an appeal.
Federal judges in six other states — Kentucky, Michigan, Ohio, Oklahoma, Texas, and Virginia — have struck down all or part of same-sex marriage bans in recent months. The Denver appeals court hears a challenge to the Oklahoma ban on April 17, a week after hearing the Utah case.
Utah's legal brief argues that restricting marriage to opposite-sex couples "helps prevent further erosion of the traditional concept of marriage as being principally a child-centered institution, one focused first and foremost on the welfare of children rather than the emotional interests of adults."
Children do better, the state says, when they are raised by their biological mothers and fathers "or at least a mother and father in intact families." Changing the marriage rules "would likely reduce over time the proportion of children being raised in one of those arrangements."
What's more, the state argues, "If marriage is about accommodating the needs and desires of adults rather than meeting the needs of children and society, then it is no longer an obligation — something one is supposed to do if one wants to have children. Rather, it is simply an option, to be chosen if, but only if, it is what one wants or what one thinks will make one happy."
In their court brief, lawyers for the three couples challenging the Utah ban argue that marriage is a fundamental right and that the state has offered no substantive reason for why gay couples are unfit to exercise the freedom, let alone "why their personal choices concerning marriage and family life and not entitled to the same degree of constitutional protection as other citizens."
Marriage is not, they say, "a zero-sum game that pits the needs of children against the desires of adults. To the contrary, marriage benefits the health and well-being of both adults and children."
Excluding same-sex couples "fences out one segment of society and tells them that getting married and having children is not a path open to them." And the lawyers say marriage is not only about raising children "but also about a couple's commitment to share the joys and sorrows of life together, to care for one another through illness or job loss, and to remain each other's partner and companion into old age."
Two of the three federal judges assigned by random draw to hear the case were appointed by Republican presidents — Paul Kelly by George H.W. Bush and Jerome Holmes by George W. Bush. The third, Carlos Lucero, was appointed by President Bill Clinton. Holmes is the first African-American to serve on the Tenth Circuit bench; Lucero is the court's first Hispanic appointee.
Their decision is likely to be appealed to the U.S. Supreme Court, which will soon face rulings on the marriage bans from other circuits. The issue could come before the Supreme Court in its next term, which begins in October.