Holmes appeared the most torn and summarized his dilemma this way: The state loses if its central claims about child welfare are unproven. But, he said, that same uncertainty works against the plaintiffs because the state's assertions about gay parenting may be real and may give Utah a reason for restricting access to civil marriage.
Holmes, who is black, also drilled Utah counsel Gene C. Schaerr about whether the ban created a "second-class" of couples similar to anti-miscegenation laws that were struck down in Loving v. Virginia in 1967, ending prohibitions on interracial marriage.
"What barred them from getting married was race and in this instance, why is that any different?" Holmes asked. "You have a man who wants to marry another man and the only thing that bars them from getting married is sex, gender."
Attorneys on each side had 30 minutes to press their best points before the panel, with plaintiffs' attorney Peggy A. Tomsic asking the judges to ensure marriage rights for all and Schaerr asking them to preserve "man-woman" marriage.
On Dec. 20, U.S. District Court Judge Robert J. Shelby's Dec. 20 ruled in favor of the plaintiffs, finding that Utah's ban against same-sex marriage is unconstitutional.
More than 200 people a majority same-sex marriage supporters attended Thursday's hearing, packing two different courtrooms.
In an overflow courtroom, spectators reacted animatedly to a live feed of the arguments, cheering, mumbling, nodding and shaking their heads throughout the proceeding. Decorum prevailed in the main courtroom.
Rep. Lavar Christensen, R-Draper, who authored the constitutional amendment approved by Utah voters in 2004, was present. So was Utah Attorney General Sean Reyes, who sat with the state's hired legal team.
Before the judges were seated, Reyes approached the three same-sex couples who challenged Utah's law Derek Kitchen and Moudi Sbeity; Karen Archer and Kate Call; and Laurie Wood and Kody Partridge and said he recognized that the legal fight has created hardship for them.
Reyes told media after the hearing that he offered best wishes and apologized "if they were feeling pain."
"I wanted them to know it wasn't personal," Reyes said. "I wanted them to appreciate that I recognize their families are as important to them as my family is to me."
Kitchen said he appreciated the gesture, but "I don't fully understand his position and I don't know if I can quite grasp what it was he said to us because he is arguing against us, after all, and our lives are on the line here."
As Schaerr began his presentation, he said the issue was not how emotional or difficult the question of same-sex marriage is but whether states can define marriage for themselves. The U.S. Supreme Court has never recognized a broad fundamental right to marriage, he said, despite its ruling in U.S. v. Windsor last summer, which struck down a section of the federal Defense of Marriage Act.
Instead, Schaerr argued the Windsor decision affirmed state authority to define marriage something he said Shelby and eight other federal district judges who have ruled against bans got wrong.
Lucero told Schaerr he was not "fully persuaded that your view of federalism is the only touchstone of that case."
And Holmes pointed out that the Windsor decision twice made the point that a state's right to regulate marriage is subject to constitutional provisions.
Lucero was particularly concerned about how Utah's ban affects children and gay couples who move to the state after being validly married elsewhere.
How can the state's position be squared with the argument marriage is a child-centric institution? Lucero asked.
Schaerr admitted that the children of gay and lesbian couples would be better off if their parents could marry. But, he said, so would the children of the 40,000 or so polygamous families in Utah.
All laws, Schaerr said, create classifications that disadvantage some groups more than others.
"In this case, children," Lucero said. "Doesn't [the law] stigmatize those children? And isn't that precisely the concern that Justice [Anthony] Kennedy recognized in Windsor?"
Schaerr's answer: "There is no question there are trade-offs in policies like this" but it comes down to "what are the state's interests and are those interests sufficient to retain Utah's definition of man-woman marriage?"
Adopting a "genderless" definition of marriage would send a message that a "mom and a dad" aren't important and would tell heterosexual men that "we don't need you to have a happy marriage, a productive marriage because we set up this alternative arrangement where two women can get married and get impregnated."
Holmes asked Schaerr why the state was "backpedaling" from one researcher's work that concluded same-sex parents are inferior to opposite-sex parents.
On the eve of the hearing, Schaerr filed a letter with the court distancing the state from research by Mark Regnerus of the University of Texas, which Utah used in its briefs to bolster the claim that opposite-sex parenting is the "gold" standard for children. The letter said Regnerus' work was of "limited relevance" to Utah's key claims and acknowledged what many social science researchers and a federal judge in Michigan recently concluded: Due to flawed methodology, the study "cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements."
The judges prodded both Tomsic and Schaerr about what standard to use in evaluating whether Utah's law is discriminatory. At the lowest level of review, the state must show only that there is a rational basis for its law.
At the highest level, the state must prove its law does not hurt a group deserving of special protections similar to those afforded minorities and women.
Tomsic said while there is an assumption that state laws are based on legitimate, rational interests, legislation may not be "based on flimsy rationales that have no footing in reality" which the plaintiffs say is the case in Utah. She also said Windsor "trumps" the state's argument that its laws are subject to rational review and instead said courts must apply "careful consideration" when deciding whether the "design, purpose and practical" effect of a law is to harm a group of people.
That drew a challenge from Kelly, who said that animus can't be assigned to legislative acts done for the good of a whole community.
That in turn drew a pointed response from Lucero, who said, "To argue that public policy can trump declared constitutional rights would be a remarkable constitutional proposition, not just in Utah or Colorado but anywhere in the nation."
Kelly also asked Tomsic whether the case should be sent back to the district court for a trial to sort out disagreement on what standard applies and the conflicting social science perspectives presented.
Tomsic said the same interests claimed by Utah were presented to justify the Defense of Marriage Act and, without a trial, the U.S. Supreme Court found no justifications that overcame the disadvantages and harm the act imposed on children.
She also said the state provided no study to support its primary claim "that same-sex parenting is not as good as what they call man-woman marriage."
Every major psychological and sociological organization, she said, has come to the opposite conclusion.
Tomsic centered her argument around the Fourteenth Amendment guarantee of due process and equal protection, noting that "the people of this nation wanted to ensure that no state could treat people unequally or deprive them of fundamental rights or liberty interests."
Holmes also was curious about why the plaintiffs sued the attorney general and governor of Utah rather than county clerks tasked with issuing marriage licenses.
Tomsic said that was because the "state has taken the position that it can, in fact, and it does direct what county clerks do."
After the hearing, Tomsic and Reyes met with media on the courthouse steps and both expressed that their side would prevail.
"We look forward to a swift decision, and have confidence that these judges will give this case the serious consideration it deserves and we look forward to bringing marriage equality to Utah and the rest of the 10th Circuit," Tomsic said.
From Reyes: "This case, fundamentally, is about the right for a state, like Utah, to be able to determine something as significant and fundamental as marriage through the democratic process."