DENVER — A divided three-judge federal appeals court panel voiced support Thursday for a "fundamental right to marriage" but said Utah might have the right to define the institution as between only men and women.
In the first challenge to states' gay marriage bans to reach the appeals court level since the Supreme Court handed the same-sex marriage movement two victories last June, the 10th Circuit Court of Appeals panel appeared to be of three minds.
Judge Paul Kelly, an appointee of former president George H.W. Bush, was the most skeptical of same-sex marriage rights. Judge Carlos Lucero, appointed by Bill Clinton, appeared strongly in favor.
That left George W. Bush's judge, Jerome Holmes, in the middle. He came out forcefully, wondering why bans on same-sex marriage are any more legitimate than earlier bans on interracial marriage, which were struck down by the Supreme Court. But he also expressed some support for Utah.
The case is based on Utah's 2004 constitutional amendment banning same-sex marriage, including those from other states. Federal district Judge Robert Shelby struck down the ban in December; the state's appeal is the first of many that will be heard by appeals courts this spring and summer. An Oklahoma case will be heard here next week, followed closely by a Virginia case in Richmond next month.
One of the various cases likely will make its way to the Supreme Court, perhaps as early as next year. The high court ruled last June that the federal government must recognize legal same-sex marriages, and it cleared the way for same-sex marriages in California. But in 33 states that do not allow the practice, the court has not weighed in.
Early indications at Thursday's oral argument were that this first appeals court ruling would go the same way as every district court ruling since the Supreme Court's decisions were handed down.
Holmes and Lucero came out of the box clearly leaning toward marriage as a fundamental right for all citizens, regardless of sexual orientation. Holmes compared the case to Loving v. Virginia, in which the Supreme Court struck down state bans on interracial marriage in 1967.
"What barred them from getting married was race. In this instance, what makes it any different?" Holmes said. "Why does it matter who's claiming the right?"
Gene Schaerr, the lawyer representing Utah, answered that the state gets to define marriage. "You have to first decide what marriage is," he said.
Lucero asked whether children of gay couples married in other states but living in Utah are stigmatized when their parents' marriages aren't recognized there. And he expressed doubt about Utah's argument that allowing same-sex marriages would discourage the traditional kind.
"Why is a heterosexual couple more likely to get married if gay couples aren't allowed to get married?" Lucero asked.
During the second half of the hearing, however, both Holmes and Kelly said the state might be able to show a rational basis for passing its constitutional amendment a decade ago: protecting its traditional definition of marriage.
In essence, Holmes said, the state "has validated what has been accepted practice forever." If gays and lesbians lack the protected status of gender and race — which remains unclear even after the Supreme Court's decisions last summer — "why can't the state do what it wants to do?" he said.
Peggy Tomsic, the lawyer representing the three same-sex couples — Derek Kitchen and Moudi Sbeity, Karen Archer and Kate Call, and Laurie Wood and Kody Partridge — answered: "These are not the type of laws that our Constitution will permit."
After years spent waging political and legislative battles, proponents of gay marriage have turned almost exclusively to the courts since last year. Keeping track of the lawsuits requires a scorecard: The Human Rights Campaign counts 57 cases in 27 states, while Freedom to Marry, another advocacy group, counts 61 cases in 30 states. All told, the cases have nearly 550 plaintiffs.
And while the ultimate goal of gay rights groups is winning marriage rights in all 50 states, some of the cases raise a lesser issue: Should states without same-sex marriage be forced to recognize married couples from other states?
That issue is raised in the Utah case, which features one couple married there before the district court judge's ruling was stayed by the Supreme Court, another couple seeking to marry and a third married in Iowa who want their marriage recognized in Utah.
More than 1,000 couples were married in Utah before the Supreme Court halted the process pending appeals. That has left those couples in a marital no-man's land — their marriages neither voided nor fully recognized by the state. About 300 Michigan couples are in the same boat following a similar process last month. In all other states, district judges stayed their own rulings.
Other appeals will be heard this year, beginning with Oklahoma next week and Virginia in May. They likely will include cases from Michigan to Texas to Nevada. The 6th Circuit is made up of four states — Michigan, Ohio, Kentucky and Tennessee — all of which have same-sex marriage appeals teed up.
The last decision upholding a state's ban came in the 9th Circuit, where a district judge OK'd Nevada's prohibition in November 2012.