DENVER — Judges on a federal appeals court panel appeared sharply divided Thursday in their questions to attorneys at a hearing over whether to uphold a lower court's ruling that struck down Utah's gay marriage ban.
One of the three judges, Carlos F. Lucero, compared the state's argument that the ban should stand to the U.S. Supreme Court's infamous Dred Scott decision that denied citizenship and constitutional protections to blacks before the Civil War.
"To argue that public policy can trump a declared constitutional right would be a remarkable proposition," Lucero said.
But Judge Paul J. Kelly Jr. suggested Utah does have the right to reaffirm what has been a centuries-long tradition of heterosexual marriage.
"You are just taking the position they are wrong on this. .... We'll just ignore what the people have decided and the Legislature has done," Kelly said.
The swing vote in the case appeared to be Judge Jerome A. Holmes, who had pointed questions for both sides. He at one point compared Utah's same-sex marriage ban to Virginia's ban on interracial marriages that was struck down by the Supreme Court in 1967.
But in addressing the plaintiffs' attorneys, Holmes said gay marriage is a new and novel concept. He challenged them to explain why the state's voters should be prevented from defining marriage the way they want.
The hearing comes after a remarkable winning streak for gay marriage supporters, who in the past nine months persuaded federal judges to strike down eight states' bans on gay marriage or on recognizing gay marriages from elsewhere.
Those rulings, including the Utah one under discussion Thursday and a similar one in Oklahoma that will be heard before the same panel next week, came after the U.S. Supreme Court struck down the Defense of Marriage Act last summer. The high court found that the law violated gay couples' due process rights by preventing the federal government from recognizing their marriages.
Lucero asked attorneys how Utah's ban would affect children of gay couples, while Holmes questioned why it would be acceptable to discriminate against same-sex couples if marriage is considered a fundamental right.
"What does it matter who is claiming the right? I mean, it's a fundamental right," Holmes said.
Utah's lawyer, Gene Schaerr, said the state has the authority to define marriage in a traditional way even though other states have defined it differently.
Utah's attorneys also said that if the state had to recognize gay marriage, the next step would be having to recognize polygamy.
The plaintiffs' lawyers argued that Utah's gay-marriage ban clearly singled out gays for unequal treatment, which is forbidden by the Constitution.
After the hearing, Utah Attorney General Sean Reyes declined to go into detail about the arguments made, but he did address the child-rearing issue: "There is no intent on our part to hurt or harm children."
More than 1,000 gay couples got married in Utah after the December ruling that struck down that state's 2004 voter-approved gay marriage ban. The weddings ended only when the Supreme Court stayed the trial court's ruling pending the appeal to the 10th U.S. Circuit Court of Appeals in Denver.
The three-judge panel is not expected to rule for several months. The losing party can appeal that decision to the full 10th Circuit or directly to the Supreme Court. Though Utah's case is the furthest along, similar gay marriages cases also are working their way through at least four other federal appeals circuits. It is unclear which would reach the high court first.
The same three judges are scheduled to hear Oklahoma's appeal on April 17.
Holmes was appointed by President George W. Bush. He initially voted against staying the trial court's ruling, which allowed more than 1,000 gay couples to wed in Utah in December before the Supreme Court stepped in and stayed the initial ruling.
Lucero was appointed by President Bill Clinton, and Kelly was appointed by President George H.W. Bush.