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Federal judge hears oral arguments on Utah’s marriage equality ban

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Utah state sealU.S. District Judge Robert J. Shelby, an appointee of President Barack Obama, heard oral arguments yesterday in a legal challenge to Utah’s marriage equality ban, promising attorneys on both sides of the issue that he would attempt to issue a ruling by late January.  The AP reports:

About 100 people packed the courtroom in the city that is home to the Mormon Church, known for its efforts in helping California pass its anti-gay marriage constitutional amendment.

Lawyer Peggy Tomsic contended marriage is a fundamental right. “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,” Tomsic said.

Attorneys for the state countered it’s not the courts’ role to determine how a state defines marriage, and said the high court ruling doesn’t give same-sex couples the universal right to marry.

They also reinforced the state’s argument that Utah has a right to foster a culture of “responsible procreation,” and the “optimal mode of child-rearing,” which the state believes the law does.

Shelby quizzed both sides’ attorneys, asking pointed questions as to how he should follow the U.S. Supreme Court’s ruling this summer invalidating the Defense of Marriage Act, which prohibited the federal government from recognizing valid same-sex marriage licenses.

The judge pushed back against state lawyers’ claims that Utah could ban marriage equality in an attempt to encourage heterosexual couples to reproduce, asking, “How is it by excluding same-sex couples from marrying you’re increasing procreation?”  When Stanford Purser of the Utah attorney general’s office said that nobody knows how marriage equality will affect different-sex couples’ marriages, Shelby continued to question the responsible procreation argument, according to the AP:

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.

But the judge also challenged Tomsic, the lawyer arguing in favor of marriage equality, as to whether or not he should consider the purported harm caused by the marriage ban to the children of same-sex couples.  He also questioned whether he interpretation of the 14th Amendment was overly simplistic, and asked why he should overturn a law that was approved by almost two-thirds of the state’s voters.

Of course, we’ll have full coverage of the decision when it comes down in the next few months.

7 Comments

  • 1. davep  |  December 5, 2013 at 11:52 am

    All of that, especially the questions from the judge, sounds pretty encouraging.

  • 2. ebohlman  |  December 5, 2013 at 1:05 pm

    Keep in mind that there's a good chance the decision will be "this case needs to go to trial". Runs up our side's costs, but also runs up their side's costs and will burn out their expert witnesses, unlike ours.

  • 3. Tom  |  December 6, 2013 at 2:58 am

    "The judge also challenged Tomsic, the lawyer arguing in favor of marriage equality, as to whether or not he should consider the purported harm caused by the marriage ban to the children of same-sex couples. .."
    Duh? When someone is denied equal protection and due process under the constitution, for a fundamental right of marriage, of course there is harm to the family. The stigma of being 2nd class and not having access to the spouse who has family Health insurance and social security to name a few.

  • 4. davep  |  December 6, 2013 at 12:53 pm

    Indeed. "Harm" is central to the entire issue of constitutional compliance. When a law singles out some citizens for different legal treatment, the question of "does this harm them?" and "does this law serve any legitimate beneficial purpose that makes it necessary to allow that harm to continue?" are pretty much all there is to the whole matter. And laws that deny same sex marriage fail these basic tests. That's the whole point.

  • 5. Straight Supporter  |  December 7, 2013 at 9:54 am

    "When Stanford Purser of the Utah attorney general’s office said that nobody knows how marriage equality will affect different-sex couples’ marriages"

    Several states have had marriage equality for years now. How is it that we don't know how it will affect different-sex couples' marriages? I'm sure straight couples in those states are not getting married as much or having as many kids now that same-sex marriage is legal in those states.

  • 6. Darrell  |  December 8, 2013 at 10:50 pm

    Okay this Judge I believe is on our side and here is why….

    He is a Registered Democrat and was appointed to the bench by President Obama , he also asked the state is very serious questions that he didn't seem to be buying into….

    I see us winning this case….. 🙂

  • 7. Equality On TrialFederal &hellip  |  December 20, 2013 at 1:22 pm

    […] has just declared that Utah’s ban on same-sex marriage is unconstitutional. The ruling comes after this month’s oral arguments in the […]

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