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Tenth Circuit hears arguments in challenge to Utah’s same-sex marriage ban

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Tenth Circuit Court of AppealsThe Tenth Circuit Court of Appeals heard arguments today in Kitchen v. Herbert, the challenge to Utah’s same-sex marriage ban. The hearing lasted over an hour – the judges on the panel were active questioners. Throughout the proceedings, it seemed like only one judge – Paul Kelly, appointed by President George H. W. Bush, was in favor of the state’s ban. Judge Kelly saved most of his questions for Peggy Tomsic, the plaintiffs’ lawyer. At one point, the judge seemed to suggest that he believes a ruling in favor of same-sex marriage would lead to polygamy.

As the hearing opened, Gene Schaerr argued first for the state. Almost immediately, he was pressed by Judge Jerome Holmes, an appointee of President George W. Bush, to explain why this case is different from Loving v. Virginia, the case that struck down state bans on interracial marriage. Judge Holmes suggested that this case, like Loving, turns on a classification of people into groups, asking “why doesn’t it matter” that the ban is based on that same sort of classification. He told Schaerr that interracial marriage bans made mixed-race couples an “other”, and he pointed out that the Supreme Court in United States v. Windsor used similar language.

When the questioning turned to the issue of whether marriage is a fundamental right, and whether same-sex marriage is included in that fundamental right or not, Judge Carlos Lucero expressed concern about how narrowly-construed the description of the fundamental right should be. He asked whether it’s not just a fundamental right to marriage, rather than to “same-sex marriage.” Schaerr responded that same-sex marriage isn’t deeply rooted in this country’s traditions, and he argued that the concept of marriage as a fundamental right stems from the belief that it’s essential to the human race’s survival.

At that point, Judge Holmes joined Lucero, asking Schaerr, “why does it matter who’s claiming the right?”

Schaerr did press one point repeatedly throughout the argument: he argued that before the courts can determine the level of judicial scrutiny, or whether a fundamental right is at stake, judges should consider “what marriage is.” He argued that the whole point of Windsor was that the Supreme Court shouldn’t decide the issue of same-sex marriage.

Schaerr tried to suggest that same-sex marriage and polygamy are the same, but Judge Lucero stopped him, suggesting “there will be plenty of time to talk about polygamy some other day, but let’s talk about gay marriage today.”

When Schaerr quoted from Maggie Gallagher, on the subject of fatherhood and fatherlessness, Lucero asked if the state believes divorce is the problem, or if same-sex marriage is the problem.

At one point, Schaerr suggested to the court that same-sex marriage tells heterosexual men “we don’t need you” to be fathers.

In the final minutes of his opening argument, Schaerr tried to discuss parenting as a rationale for the ban, and the discussion went badly for his side. He was asked by Judge Holmes about the state’s letter, filed yesterday, addressing Mark Regnerus’ research. The letter had appeared to distance the state from Regnerus’ findings, seemingly leaving most of their legal arguments for the ban in shambles. Holmes asked “what’s left” of the state’s reliance on Regnerus and the state’s parenting rationale, if they’re backing away from his theory.

Reacting to the question, Schaerr said that the science on these issues in inconclusive, and so there’s no proof for either theory.

Holmes then asked, if the science is inconclusive, and the judges decide that laws that classify people on the basis of their sexual orientation warrant a heightened level of judicial scrutiny, doesn’t the state lose?

When Peggy Tomsic got up to argue, the discussion focused on the issue of what level of judicial scrutiny should apply. The parties debated on whether the Tenth Circuit is barred from applying heightened scrutiny because of binding precedent: Tomsic said the older decision doesn’t mean what the state says it means. Even so, she suggested, rational basis isn’t supposed to be toothless, there is supposed to be review and specifically the courts have to find a nexus between the state’s interest and the law at issue.

Judge Kelly argued that there were accusations that legislators were “mean-spirited” and “bigoted”, and when Tomsic said animus as a legal term doesn’t mean exactly that, he said: “sure it does.”

One issue that found its way into the hearing is the issue of Article III standing. Judge Holmes said a few times that there may not be standing in the case. The Tenth Circuit had sent the Oklahoma same-sex marriage case back to the lower court at one point in the past after determining that since only the governor and attorney general were sued, there was no standing. Here, the same issue arises: only those two people were sued.

Tomsic argued that here, the state officials can control the actions of county clerks – the officials set state policy on recognizing marriages for different types of benefits.

Tomsic seemed to get less questions than Schaerr, though the judges were skeptical of points in both sides’ presentations.

During one back-and-forth Judges Lucero and Kelly almost seemed to be arguing with each other. Judge Kelly had seemed to suggest that a state’s public policy might be more important than a constitutional right, and Judge Lucero called that proposition “remarkable.”

On rebuttal, Judge Lucero again prodded Schaerr, saying at one point that his view of states’ rights “sounds like Dred Scott.

Next week, the same panel hears arguments in Bishop v. Smith, the challenge to Oklahoma’s same-sex marriage ban.


  • 1. Dr. Z  |  April 10, 2014 at 2:55 pm

    Holmes was appointed by Geo HW Bush, not Geo W Bush

  • 2. Tim  |  April 10, 2014 at 2:59 pm

    It was GW Bush.

  • 3. Scottie Thomaston  |  April 10, 2014 at 3:01 pm

    No it's George W Bush

  • 4. Dr. Z  |  April 10, 2014 at 4:53 pm

    Thanks for the correction. So Dubya appointed the swing justice and Poppy appointed the apparent 'phobe?

  • 5. Frisky1  |  April 10, 2014 at 3:16 pm

    Lol @Maggie Gallagher being brought up in court, as an expert on anything. at least she wasn't there in person with her stinky naked disrespectful feet up on the chair.

  • 6. DrHeimlich  |  April 10, 2014 at 3:23 pm

    Yeah, the folks in my row of the courtroom snickered at that.

    It's a shame the format of this hearing didn't allow for our side to comment on that attempt at testimony, or to point out that Maggie Gallagher has even fewer credentials than Regnerus to be offering any scientifically or legally persuasive insights on this subject.

    Then again, maybe best not to call any more attention to it. If Gallagher is the fallback position from Regnerus, our side has totally won.

  • 7. davep  |  April 10, 2014 at 3:39 pm

    Indeed. Makes you wonder who they would resort to quoting next. Maybe the Westboro Cult?

  • 8. Bruno71  |  April 10, 2014 at 3:51 pm

    Pretty soon, Bryan Fischer will be the "expert."

  • 9. Guest  |  April 10, 2014 at 5:12 pm

    I think they're called pig trotters.

  • 10. Schteve  |  April 13, 2014 at 5:30 pm

    You'd think someone using her to point out the danger of fatherlessness would be all for two-father marriages.

  • 11. palerobber  |  April 10, 2014 at 3:33 pm

    great write up — thanks!

  • 12. palerobber  |  April 10, 2014 at 3:39 pm

    big problem for Schaerr on the "fundamental right" question — interracial marriage isn’t "deeply rooted in this country’s traditions" either.

  • 13. sfbob  |  April 10, 2014 at 3:48 pm

    In any case, someone needs to remind Schaerr (and perhaps one of the justices) that the ruling in Loving vs Virginia did not concern a "right to interracial marriage" but a right to marry the person of one's choice, regardless of race. And that similarly, the current court cases are not about the "right to same-sex marriage" but the right to marry the person of one's choice regardless of gender.

    As a matter of historical note, during the confirmation hearing for one of President Obama's Supreme Court nominees (I believe it was Kagan), the nominee was asked if she thought there was a right to same-sex marriage. She stated she didn't think there was such a right. This was a very sly answer on her part, for reasons most of us here would probably think are obvious.

  • 14. Steve  |  April 10, 2014 at 8:50 pm

    1 man/1 woman marriage certainly isn't deeply rooted in Utah's traditions

  • 15. RCChicago  |  April 11, 2014 at 9:23 am

    The ultimate hypocritical stance to take, isn't it?

  • 16. Scottie Thomaston  |  April 10, 2014 at 3:53 pm

    Here's a fun thing that happened that wasn't in the post: I sat next to Derek Kitchen's mom and she is so cool.

  • 17. davep  |  April 10, 2014 at 4:06 pm

    Tell her we all say 'hi!'

  • 18. SoCal_Dave  |  April 10, 2014 at 4:20 pm

    "At one point, Schaerr suggested to the court that same-sex marriage tells heterosexual men “we don’t need you” to be fathers."

    omg, He said this with a straight face? Yeah, straight men always look to gay men and lesbians for cues on how to live their lives. :-/

  • 19. Scottie Thomaston  |  April 10, 2014 at 4:38 pm

    I was rolling my eyes so much at that part.

    I mean he essentially admitted the whole point of the ban is so hetero men feel more secure.

  • 20. Josh  |  April 11, 2014 at 4:17 pm

    Great way to put it! They keep trying different ways of saying marriage is all about raising kids when it isn't and that has been stated in many rulings. Isn't there a case about prisoners serving life sentences still allowed to get married? Of course then they bring up their brilliantly crafted phrase "procreative potential" or whatever version they're using this week.

  • 21. Carpool Cookie  |  April 12, 2014 at 2:11 pm

    "Isn't there a case about prisoners serving life sentences still allowed to get married?"

    Yes, you are right. It's Turner v. Safley (1987). Two prisoners wanted to be allowed to write to each other from different prisons, and to marry. The wardens said No to both demands. The Supreme Court ruled that restricting correspondence between fellow prisoners made some sense on a security level…but denying them the right to marry was a whole other thing, and didn't serve any purpose.

  • 22. Carpool Cookie  |  April 12, 2014 at 5:42 pm

    So, in essence…one could be on Death Row with just a short time left, and be married in prison…even though there's no chance you'd ever be released or able to produce children with the spouse.

  • 23. palerobber  |  April 10, 2014 at 4:52 pm

    also implied in that bizarre line of argument is that the millions of children sired every year by straight men could all be accomodated by adoptive gay couples (but only if their marriages are recognized).

    "no worries, guys — we got this!"

  • 24. Zack12  |  April 10, 2014 at 4:41 pm

    Here's a problem the bigots can never answer.
    What about people who don't want to have kids? Should they be allowed to get married?
    Straight or gay I wasn't going to have kids, so by that logic I should be banned from marriage.

  • 25. SoCal_Dave  |  April 10, 2014 at 4:59 pm

    Or people who can't have kids. To be consistent they really need to impose a fertility test in order to qualify for a marriage license.

  • 26. jsparazy  |  July 17, 2014 at 12:04 pm

    What about people that are too old to have children? Maybe they would want them but come on, people in their 50's, 60's, 70's and beyond marry all the time. Most are beyond the biological ability to have children. Using the same analogy as Zack12, by that logic once one is no longer able to have children then they should be banned from marriage? Or, taking that further, if a couple marries and they find that they are unable to conceive, then by that, are we saying that the Government should have the right to access one's personal health information to invalidate a marriage? The whole argument hinging on the concept of children is preposterous. Marriage should be a fundamental right of anyone – regardless of race, gender and/or sexual orientation. There are so many bigots and religious zealots that want to twist this whole issue into having or not having children. How about if everyone gets out of the bedrooms of everyone other than their own? Marriage is and should be an issue of the right to marry whomever you love. Period.

  • 27. ebohlman  |  April 10, 2014 at 7:50 pm

    OT, but a Federal judge in Indiana has issued a temporary restraining order requiring the state to recognize the out-of-state marriage of Niki Quasney and Amy Sandler. Quasney is terminally ill (stage 4 ovarian cancer) and the couple have two toddlers. The order is effective until May 8 and cannot be appealed; the court will schedule (but has not yet done so) a hearing on a preliminary injunction.

  • 28. Steve  |  April 10, 2014 at 8:49 pm

    >"saying at one point that his view of states’ rights “sounds like Dred Scott."

    That's all the concept ever meant. It has never been used for anything but oppression.

  • 29. Dr. Z  |  April 10, 2014 at 9:29 pm

    I can't help but think Lucero's reference to Dred Scott was intended for Holmes.

  • 30. Josh  |  April 11, 2014 at 4:59 pm

    I had to comment on these quotes from the following article.

    "Schaerr said the government has a legitimate interest in encouraging heterosexual marriages between a child's biological parents. Allowing same-sex marriages would dilute that message, he said."– How so? It's the silly idea that including gay couples in marriage somehow discourages straight couples from marrying. There's no rational to that, no proof, and if some straight couples don't get married because gay couples are included, that clearly shows animus and the good ol' ick factor. Those people are stupid and shouldn't raise children anyway.

    "A lesbian couple could conceive a child through artificial insemination and the child would not have a masculine role model, he said." — Really? They won't have any male relatives, teachers, neighbors, family friends, etc? That seems unlikely. He must think children whose dad dies, abandons them or otherwise isn't present in their lives should be removed from their mom's custody. Another pointless statement.

    "Schaerr told justices a key risk of gay marriage is that children are raised by someone other than their natural parents and that those children have a higher rate of criminal behavior." On what is he basing this statement? I'm sure it's not data on children raised by same sex couples. A judge should've asked him if children do better in an adoptive home with committed parents or in an orphanage. Kids do great when they are raised by people who really want to be parents whether they are related by blood or not.

  • 31. Alan Katz  |  April 15, 2014 at 12:54 pm

    I'm surprised Ms. Tomsic didn't jump on Shaer's quoting Maggie Gallagher as some type of expert!

    She is (or was) America's #1 homophobe. She is co-founder of NOM and viciously anti-gay.

    She has NO qualifications to speak. No degrees, no studies, no published papers. She's just one more bigot.

    She is also one of the ones who got Regnerus hired to do the hoax anti-gay "study" that Utah is trying, so desperately, to distance themselves from.

    But nobody called him on that bizarre quote from such a biased source. I wonder why?

  • 32. Equality On TrialThis sum&hellip  |  July 12, 2014 at 10:42 am

    […] Court of Appeals: The Tenth Circuit heard arguments in challenges to same-sex marriage bans from Utah and Oklahoma on April 10 and April 17. They’ve issued their opinion in the Utah case, Kitchen […]

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