SALT LAKE CITY — A federal judge says he’ll do his best to rule by early next year on a legal challenge to a same-sex marriage ban in Utah, after an attorney called for an end to the prohibition by arguing that the precedent has been set by the U.S. Supreme Court and discrimination has gone on long enough.
U.S. District Judge Robert J. Shelby heard arguments from both sides Wednesday as he weighed what will be a precedent-setting decision on Utah’s 2004 voter-passed law.
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 s tate 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.
“There is nothing unusual about what Utah is doing here,” said Stanford Purser of the Utah Attorney General’s Office, objecting to the notion that the law is rooted in bigotry or hatred. “That’s the nature of legislation: You draw lines and make designations.”
Though more than 40 similar court challenges to same-sex marriage bans are pending in 22 states, Utah’s is among the most closely watched because of the state’s history of staunch opposition to gay marriage, said Jon Davidson, director of Lambda Legal, which pursues litigation on a wide range of LGBT issues across the country.
Utah is home to The Church of Jesus Christ of Latter-day Saints, wh ich believes homosexuality is a sin and was one of the leading forces behind California’s Proposition 8. Utah was among the first states to pass an amendment banning same-sex marriage, Davidson said.
“Utah has a particularly symbolic position in the history of the struggle of same sex couples to be able to marry,” Davidson said.
Shelby, who took the bench in September 2012, asked dozens of questions to both attorneys. He said afterward that he had his “hands full” with the case but vowed to do his best to make a ruling by early January.
Much of the hearing focused on the state’s premise that the law helps promote procreation. Shelby grilled the state’s attorneys on the connection between banning same-sex marriage and the number of babies born to heterosexual couples.
“How is it by excluding same-sex couples from marrying you’re increasing procreation?” the judge asked.
Purser declined to answer directly, saying the issue was irrelevant in this case. Pressed, he said nobody knows yet the effects of same-sex marriage on heterosexual marriage.
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.
Philip Lott of the Utah Attorney General’s Office said the state wouldn’t give fertilization tests and said a post-menopausal woman may still raise a grandchild or niece or nephew.
Tomsic scoffed at the state’s rationale of promoting procreation, saying there is no evidence to suggest banning same-sex marriage has any effect on whether men and women have children. She also took exception to the idea that same-sex couples can’t provide stable, loving homes for kids. She said an estimated 3,000 Utah children are being raised by gay and lesbian parents who are suffering because of the state’s law.
“These kids every day of their lives are facing a social stigma,” Tomsic said. “The harm is immense in this state.”
Shelby questioned why harm should be considered in his judgment, and also pointed out that Tomsic’s interpretation of the 14th Amendment was overly simplistic. He noted the Supreme Court ruling on gay marriage had sections that benefited both sides in the legal challenge.
The judge also asked why he should overturn what nearly two-thirds of Utah voters decided was best for the state nearly a decade ago.
Five of the six people who brought the lawsuit in March attended the hearing.
Tomsic said one of the couples was legally married in Iowa and just wants that license recognized in Utah. She said the couples work and contribute to society and deserve equal rights in the state where they live, no matter how the law came to be.
Utah’s law is “based on prejudice and bias that is religiously grounded in this state,” Tomsic said.
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