Oral arguments for two landmark cases clash over constitutionality of same-sex marriage
“This issue is really one of authority,” Gene Schaerr told the three-judge panel as the attorney representing Utah in defense of the state’s same-sex marriage ban. “That is, whether under the federal constitution, the state’s definitional authority over marriage allows them to not only redefine marriage in genderless terms … but also to retain the traditional man-woman definition and to do so through democratic means.”
In 2004, Utah voters approved Amendment 3, defining marriage between one man and one woman.
Schaerr went on to reject the argument that same-sex couples have a right to marry. “The Supreme Court has never recognized such a broad fundamental right to marriage despite being urged by the United States in the Windsor case to adopt that very position.”
Because Utah’s vision of marriage consists of a man and a woman rearing children, argued Schaerr, same-sex couples fall outside of that definition and are therefore not losing any fundamental rights.
The three judge panel consisted of Judge Paul Kelly (appointed by President George H. W. Bush), Judge Carlos Lucero (appointed President Bill Clinton), and Judge Jerome Holmes (appointed by President George W. Bush).
Lucero asked Schaerr how same-sex couples raising families are impacted by Amendment 3.
“How will the state treat the children of those couples given Amendment 3 and its statutory scheme, and how can that treatment be squared with your argument of the marriage institution being a child-centric institution?”
Schaerr conceded that children of same-sex couples would be better off if their parents were allowed to marry. “There is no question there are tradeoffs in policies like this, so the real question is, what are the state’s interests? And are those interests sufficient to justify Utah’s decision to retain the traditional man-woman definition of marriage?”
Peggy Tomsic, attorney for the plaintiffs suing Utah, opened her arguments with the statement that Amendment 3 infringes on constitutional rights. “Utah’s marriage discrimination laws violate plaintiffs’, and other same-sex couples’ living in Utah, equal protection rights and due process rights guaranteed by the 14th amendment.”
Tomsic added that children of same-sex parents are not somehow disadvantaged compared to their peers reared by opposite-sex couples. “There is no study presented to this court that in fact measures the only issue that existed as one the of the state’s primary arguments, which was that same-sex parenting is not as good as what they called the man-woman marriage.”
Two of the judges appeared to agree with Tomsic on that point. “Judge Holmes and Judge Lucero were very skeptical of the argument that same-sex parenting is any worse for kids than traditional parenting arrangements,” said Nancy Leong, assistant professor at the University of Denver’s Strum College of Law. “And one of the things that was really notable about Judge Holmes’ line of questioning,” added Leong, “is that he repeatedly asked questions about bans on interracial marriage.”
Both the Utah and Oklahoma cases cited Loving v. Virginia, a landmark 1967 case in which the U.S. Supreme Court unanimously ruled that it is unconstitutional for a state to prohibit marriages between people of different races.
“Holmes asked over and over why this is any different,” said Leong. “You’re singling out a group of people based on a suspect classification. There, it was race. Here, it’s sex.”
The attorney representing the state of Oklahoma, Jim Campbell, opened his arguments with the assertion that same-sex couples are not discriminated based on sex, but are characterized from other couples based on the possibility of procreation.
“From Oklahoma’s inception, marriage has been a man-woman union,” said Campbell, adding that “the natural procreative potential of opposite-sex couples distinguishes that group from same-sex couples, and that difference is relevant to the procreative and child-rearing interest in marriage that the state has the authority to implement.” In 2004, Oklahoma voters passed their own constitutional amendment banning same-sex marriage.
But Lucero pressed Campbell on how allowing gays to marry will harm the child-rearing interest of opposite-sex couples. “I don’t understand the nexus, the connection that you’re making that if gay marriage is allowed, somehow that’s going to be a poison pill to marriage by heterosexual couples.”
“No one knows what the long term effects of redefining marriage will be,” replied Campbell, “but people on both sides of the marriage debate acknowledge that it will have real-world consequences, and it’s the plaintiffs’ burden to show that there is no risk that any of those consequences will be adverse.”
Judge Holmes pointed out that the American Psychological Association (APA) disagrees with Oklahoma’s assertion of possible injurious consequences. “[The APA] emphasized that the two key components in determining good outcomes for children were stability and family resources — parental resources — and both of those have nothing to do with gender, right?”
Campbell replied that the findings of the APA were not without dispute.
Leong stated that perhaps the most notable moment out of both cases came when Judge Holmes questioned Campbell about the limits of Oklahoma’s power. “The state cannot define marriage in any way that it wants and trample constitutional rights, right?”
Campbell agreed, but added that the Loving case involved racial discrimination. “In contrast, the sex of the spouses is directly relevant to the government’s interests in procreation and child rearing.”
“I thought that was an amazing moment in the arguments,” said Leong. “Judge Holmes drew a line from the Supreme Court decision in Windsor to this idea that the state can’t trample people’s constitutional rights by the definition of marriage.”
It will be months before a final ruling, and though Leong stated she was optimistic that the panel will rule in favor of the plaintiffs in both lawsuits, a prediction of the 10th Circuit’s final decision is problematic.
What is certain is that the losing side will appeal the decision, but it’s unclear if the U.S. Supreme Court will take up the cases or defer to the 10th Circuit’s final ruling.
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