The federal judge weighing the constitutionality of Utah's ban on same-sex marriage said Wednesday the answer may hinge on whether the three couples who brought the lawsuit are seeking a new right or establishing access to an existing, fundamental right to state-sanctioned marriages.
In the view of state attorneys, the lawsuit is aimed at establishing a new right, one that no other federal court has recognized. In the view of attorneys representing the plaintiffs, it is about gaining access to the fundamental right to chose whom to love and marry.
Of course, U.S. District Court Judge Robert J. Shelby said the issue was not that simple, noting that the recent U.S. Supreme Court decision that both sides used to bolster their arguments did not provide the clear-cut guide needed.
Shelby earlier promised the parties he would issue a ruling with "deliberate speed," with a self-imposed deadline of Jan. 7. That's when a trial scheduling conference is set, a hearing that could be moot if the judge makes a summary judgment finding for one side or the other. Shelby's ruling will be the first since a historic U.S. Supreme Court ruling on same-sex marriage in United States v. Windsor this summer.
The plaintiffs in the Utah case are Derek Kitchen and Moudi Sbeity; Laurie Wood and Kody Partridge; and Karen Archer and Kate Call. All but Archer, who is ill, attended the 3½-hour hearing, sitting on the first bench behind their attorneys and listening intently.
The audience seats were full; among the observers were at least two other federal judges, who attended a portion of the hearing.
Attorneys for the plaintiffs and the state offered arguments about what standard of review Shelby should use in evaluating the constitutionality of Utah's Amendment 3, the law approved by 66 percent of voters in 2004 that bans same-sex marriage as well as legal recognition of valid marriages performed elsewhere and other forms of same-sex domestic partnerships. Utah, for example, does not recognize Archer and Call as a married couple even though they were legally married in Iowa.
The state attorneys said case law requires that Shelby use a rational-basis standard to determine if Utah's law promotes a legitimate government interest in supporting responsible procreation and the "gold standard" of two biological parents for child rearing, which they said was the primary purpose behind the ban on same-sex marriages. The plaintiffs' attorney advocated a heightened-scrutiny standard, which would recognize same-sex couples as an unprotected class such as racial minorities or women while also suggesting that even at the lower standard the state had not proven a rational connection between the law and the government's expressed interests.
Shelby pointedly questioned Phil Lott and Stan Purser, the assistant attorneys general representing the state, on the point of how the law promotes an interest in procreation and child-rearing by biological, married parents.
Is procreation essential to the definition of a fundamental right to marry, the judge asked. Would that then preclude post-menopausal women from marrying? the judge pressed. Could the state then choose to require couples seeking to marry to submit to fertility tests to determine procreative ability?
Lott said the state's interest in procreation within heterosexual marriage existed even though not all such marriages result in offspring.
"The state interest doesn't have to be so broad to still have a rational purpose," he said.
"It's the state's role to define marriage," said Lott, and the Supreme Court opinion in the Windsor case, which struck down a key portion of the federal Defense of Marriage Act barring access to federal benefits even in states where same-sex marriage is legal, did nothing to change that. No federal court has determined there is a constitutional right to same-sex marriage, he added, and DOMA still allows states to not recognize same-sex marriages performed elsewhere.
Peggy A. Tomsic, lead attorney for the plaintiffs, spoke for 90 minutes, focusing on points of law as well as the historical moment.
"This case embodies the civil rights movement of our time," Tomsic told Shelby. "This court is being called on to finally recognize and protect the rights" of same-sex couples like the plaintiffs, who desire to marry and receive the state-sanctioned benefits and recognition the institution now affords to opposite-sex couples.
"This is the time and this is the place for this court to make it clear that the 14th Amendment is, even in Utah, alive and well," she said.
Tomsic likened the plaintiffs' lawsuit to those of other minority groups who asserted their rights under the U.S. Constitution in the past, including interracial couples who wanted to marry and African Americans who wanted access to the same schools attended by whites.
Shelby must hold likewise that it is unconstitutional to segregate same-sex couples from opposite-sex couples when it comes to granting them the fundamental right to marry the person of their choice, regardless of gender, she said.
"The right to get married would be a very hollow right if it did not include the right to choose who you're going to marry," Tomsic said.
Shelby reminded Tomsic that he is not supposed to substitute his judgment for that of lawmakers or the voters.
But Tomsic argued that the judge had to rule for her plaintiffs given the Windsor decision. Tomsic said DOMA was nearly a "mirror image" of Utah's law, which she described as even more draconian, and that the Windsor opinion is the "beginning and end point" for determining equal protection rights of the plaintiffs.
In fact, Lynn D. Wardle, a Brigham Young University law professor, helped draft Utah's law, consulted on DOMA and joined on amicus briefs filed in both the Windsor and Kitchen cases.
In looking at the "design, purpose and effect" of Amendment 3, as called for in the Windsor opinion, Tomsic urged the judge to look at the "animus" toward homosexuals expressed in comments made during floor debate in the Utah Legislature as it considered placing the law before voters as well as in a voter information pamphlet.
There is no question that excluding same-sex couples from the right to marry was not based on any rational government interest but rather on "animus, pure and simple," she said.
Purser, who also addressed Shelby on behalf of the state, acknowledged that Utah's law limits access to marriage and makes some unhappy.
"There's no question that the benefits and advantages of marriage do not apply to those who are not married," he said, though same-sex couples can legally contract to achieve some of those benefits. While a majority of Utah voters supported Amendment 3, it doesn't mean they were motivated by bigotry, animus or prejudice, Purser said.
When Shelby asked Purser to explain how the same-sex marriage ban impacts procreation by opposite-sex couples, the state attorney said it was a good question, one that time may answer, but not relevant to the question of the constitutionality of the state's law.
But Tomsic pointed out that "procreation has never, ever, ever been a condition of granting a license to marry in this state." That said, same-sex couples "can and do" have children through various means.
She said nearly 3,000 children were, as of 2008, being raised in same-sex couple households in Utah, yet those children "don't have the same stability and dignity that children of same-sex couples in New York [the home state of the plaintiffs in Windsor] have."
"Here the opposite is true. Here everyday of their lives these children are facing a social stigma," Tomsic said. "By banning same-sex marriage, you are hurting Utah children."