Follow breaking news @lgbtqnation
Utah

Federal judge hears arguments on Utah’s same-sex marriage ban

Thursday, December 5, 2013

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.

Rick Bowmer, APPlaintiff's Laurie Wood, left, and her partner, Kody Partridge, center, walk with their attorney Peggy Tomsic, after leaving the Frank E. Moss United States Courthouse on Wednesday, Dec. 4, 2013, in Salt Lake City.

Rick Bowmer, AP
Plaintiff’s Laurie Wood, left, and her partner, Kody Partridge, center, walk with their attorney Peggy Tomsic, after leaving the Frank E. Moss United States Courthouse on Wednesday, Dec. 4, 2013, in Salt Lake City.

Rick Bowmer, APDerek Kitchen, left, and his partner Moudi Sbeity, right, talk with the media outside Frank E. Moss United States Courthouse following court on Wednesday, Dec. 4, 2013, in Salt Lake City.

Rick Bowmer, AP
Derek Kitchen, left, and his partner Moudi Sbeity, right, talk with the media outside Frank E. Moss United States Courthouse following court on Wednesday, Dec. 4, 2013, in Salt Lake City.

About 100 people packed the courtroom in the city that is home to the Mormon Church, known for its efforts in helping California pass its anti-gay marriage constitutional amendment.

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.

His decision would be the first on a state same-sex marriage ban since the Supreme Court last summer struck down part of the Defense of Marriage Act, which stipulated that marriage was between a man and woman.

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.

© 2013, Associated Press, All Rights Reserved.
This material may not be published, broadcast, rewritten, or redistributed.
Share this article with your friends and followers:

Archives: , ,

Filed under: Utah, [ Editor's Picks ]

24 more reader comments:

  1. LAND OF THE FREE that is supposed to mean all of us isn’t it?

    Posted on Thursday, December 5, 2013 at 3:23pm
  2. If Utah passes a bill before Texas I will serisouly shoot myself in the foot!

    Posted on Thursday, December 5, 2013 at 3:32pm
  3. Likely both of them will pass it before Wisconsin does.

    Replied on Thursday, December 5, 2013 at 3:59pm
  4. What about this wonderful state that I live in? SOUTH CAROLINA - doubt it ever passes here until it becomes a federal law

    Replied on Thursday, December 5, 2013 at 4:32pm
  5. I bet the Mormons are shitting bricks!!!!! Lovely. :)

    Posted on Thursday, December 5, 2013 at 3:36pm
  6. UTAH!? BEFORE OHIO!?

    Posted on Thursday, December 5, 2013 at 3:37pm
  7. I think if a man can get married to more then one woman why cant our lgbt family get married too? I am a proud bisexual and have a transgender sister and a bisexual son who I love and think we all should get the right to marry whomever we fall in love with.

    Posted on Thursday, December 5, 2013 at 3:51pm
  8. the Mormons are going to shit ! if the government does not recognize their right with their religion to have multiple wives but same sex folks can marry..spells disaster for the state because we all know that is the Mormon capitol

    Posted on Thursday, December 5, 2013 at 4:03pm
  9. If consenting adults want to sign a martial contact, go for it. I don’t care if it’s a man marrying a man, a woman marrying a man, a woman and a woman, five women and a man, five men and a woman, five women and a woman or five men and a man. Go for what makes you happy because IT DOESN’T AFFECT ME and I have no right to say you can’t do something that doesn’t hurt anyone!

    Posted on Thursday, December 5, 2013 at 4:09pm
  10. Never understood the Mormon opposition to gay marriage. Yes the mainline church rejected plural marriage to gain statehood but you’d think now would be a good time for them to say there’s nothing wrong with a man marrying five women or one man.

    Posted on Thursday, December 5, 2013 at 4:25pm
  11. Ummm…they still don’t have minorities in the upper eschelons of the church.
    That church will be one if not the last to except LGBT rights.

    Posted on Thursday, December 5, 2013 at 4:33pm
  12. The reason Mormons don’t want gay to marry its for procreation. They believe that there are souls in heaven waiting to come to earth to get their physical body. That is why multiple wives, that is why the fertility test before marriage, that is why they have such large families…it’s their “celestial” plan to provide bodies to these souls so they can pass under the veil and return to a greater “celestial” kingdom. Once they are on this kingdom they will rule us heathens. If your gay…how can you procreate? This is their opposition to homosexuality…they have shock therapy facilities to “fix” the homosexuality out of you!

    Posted on Thursday, December 5, 2013 at 4:54pm
  13. In Utah, well good luck with that. Shame how polygamy is legal there but same sex marriage isnt. Priorities? Whats that? Lol

    Posted on Thursday, December 5, 2013 at 5:31pm
  14. Good start

    Posted on Thursday, December 5, 2013 at 5:45pm
  15. one more domino about to fall.

    Posted on Thursday, December 5, 2013 at 6:03pm
  16. The Mormons have been so supportive I wonder what the deal is??

    Posted on Thursday, December 5, 2013 at 6:33pm
  17. “‘Heroes’ make the sun rise in the morning and the stars shine bright at night”. Thank you both for doing the sort of thing that I would NEVER have had the courage to do myself!

    Posted on Thursday, December 5, 2013 at 6:34pm
  18. Let all people marry who they want! Gheez!

    Posted on Thursday, December 5, 2013 at 7:39pm
  19. Winning Utah in the battle would be a major coup – especially since the Mormons were primarily responsible for crushing marriage rights in California. :) Sally

    Posted on Thursday, December 5, 2013 at 8:00pm
  20. All the courts will eventually rule that marriages have to be accepted in all states, because 1) to rule otherwise sows chaos and 2) Obama has appointed half the federal judges already, with three years left in his term to make it a clear majority. The homophobes can only grind their teeth and grow tumors. http://www.usatoday.com/story/news/politics/2013/10/31/obama-judges-democrat-republican-senate/3286337/

    Posted on Thursday, December 5, 2013 at 9:08pm
  21. sep of church ans state!

    Posted on Friday, December 6, 2013 at 3:17am
  22. LOVE WILL WIN!

    Posted on Friday, December 6, 2013 at 3:41am
  23. Lived in Utah and polygamy is not legal in Utah…I know of 2 families that follow the polygamy standards but are not part of the FLDS church. I am all for same sex marriage, same as polygamy. It is ok to love more then one person or someone of the same sex. Its marriages like Kim Kardashian and Chris Humphrey, that only lasted 3 days, that should not be allowed especially cause of the extra fame and money that came out of it and causes people to give up on humanity

    Posted on Friday, December 6, 2013 at 5:59am
  24. The argument against same sex marriages as posed in the article is moot. It is just something for them to haggle about. What matters is weather the law makers are LDS, If so, they HAVE to vote against same sex marriage, That is the point. I think it will come down to a vote of how many are LDS vs. how many are not.

    Posted on Friday, December 6, 2013 at 9:08am