(Denver) Â The 10th Circuit Court today heard oral arguments in the Utah Amendment 3 same-sex marriage case. The judges are being asked to decide whether to uphold a lower court’s ruling which struck down Utah’s 2004 ban on same-sex marriages and civil unions. From all indications, it looks like Marriage Equality will see another court win.
Since the 2013 Supreme Court ruling in United States v. Windsor, Marriage Equality has won 9 court battles around the country (and lost zero). But the Amendment 3 case is the first time Marriage Equality has been considered on the appellate court level.
Until now, Utah’s case has almost exclusively rested on the thoroughly debunked Mark Regnerus study which claims that same-sex parents are “unfit.” But after a Michigan judge ruled that the Regnerus study was “entirely unbelievable” a few weeks ago, Utah submitted a brief to the 10th Circuit late last night walking back their reliance on Regnerus.
That walk-back landed Utah’s Attorney General in some hot water with the 10th Circuit Court, with Judge Holmes (widely considered to be the swing vote of the three-judge panel) asking whether Utah’s dropping of the study took out the entire foundation of their argument.
Holmes was extremely pointed in other areas of his questioning as well, asking that if ‘it’s true that same-sex parents are unfit, doesn’t that mean that divorced heterosexual parents are unfit as well?’ Utah’s attorneys admitted that, yes, that would make divorced parents less than ideal as well. Holmes then pressed his point, asking why Utah isn’t seeking to make divorced parenting illegal too.
At one point, Utah’s hired outside attorney Gene Schaerr actually admitted to Holmes that “Yes, children of same-sex couples would likely do better if their parents were allowed to marry.”
Utah then switched gears, highlighting how, in 2004 when Amendment 3 was first passed, it was approved by just over 60 percent of Utah voters—and that the courts should not overrule the state’s right to define marriage and the will of the people (at least, their will in 2004).This time, it was Judge Lucero who hit back, asking “Has public policy ever been allowed to overrule constitutional rights in this country?”
Lawyers for the same-sex couples, meanwhile, focused in on prior SCOTUS cases such as Loving v. Virginia, which struck down bans on interracial marriage. The attorneys argued that, like same-sex couples, the civil right for citizens to marry the person of their choice was being trampled by individual states.
Insiders at the Denver courthouse say it appeared the judges seemed to be split on their ruling, and are predicting the court will hand down a final ruling of 2 to 1 in favor of Marriage Equality, with only Judge Kelly predicted to side with Utah.
Outside the courthouse after the hearing, Derek Kitchen, one of the plaintiffs in the case who is seeking to marry his partner, said he felt “humble and proud” to be a part of the case which could pave the way for Marriage Equality everywhere. He also shared an interesting story, saying that Utah Attorney General Reyes had spoken with him before the hearing began, and had apologized to him for putting Kitchen and his partner through so much grief in the case.
Reyes confirmed the story to reporters, and said that defending Amendment 3 is “his job.” He would not say what his personal feelings about it are. However, last night he filed a suit with the Utah Supreme Court, seeking to halt all currently underway adoptions in Utah by same-sex couples (who filed their paperwork before SCOTUS put a hold on same-sex marriages in the state).
There’s no clear timeline for when the Judges will issue their ruling. But seeing as how they asked for an expedited timeline to hear the arguments, it’s possible they may issue their opinion within the next few weeks.
UPDATE: The 10th Circuit has released the audio recordings of the hearing. Listen in here.
Image via Twitter
Follow Author Eric Ethington on Twitter @EricEthington
