Utah defends ban on gay marriage

Appeals court reviews law that was overturned

DENVER — A panel of appeals court judges appeared torn Thursday about whether Utah voters and legislators who defined marriage as only between a man and woman violated the constitutional rights of same-sex couples who want to marry.

Three judges of the US Court of Appeals for the 10th Circuit were considering a lower court’s decision that Utah’s ban on same-sex marriages could not stand in light of the Supreme Court decision last summer ordering the federal government to recognize same-sex marriage from states where they are legal. But the Supreme Court justices last summer also did not recognize a constitutional right to gay marriages.

Utah’s lawyer, Gene Schaerr, told the judges they should not believe the Supreme Court ‘‘with a wink and a nod’’ was telling lower courts to recognize a constitutional right.


Schaerr faced tough questions from two of the judges, who said deference to voters and lawmakers could not come at the cost of a constitutional protection that applies to all.

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Judge Carlos Lucero, who was nominated by President Bill Clinton, said Utah had not shown how its desire to promote a man-woman model of marriage as the ideal for children was advanced by forbidding gays to marry.

Judge Jerome A. Holmes, nominated by President George W. Bush, compared the case to the Supreme Court’s decision to get rid of laws that prohibited marriage between the races. But Holmes seemed troubled by the idea that Utah’s decision to protect traditional marriage was a violation of the Constitution.

The third member of the panel, Judge Paul J. Kelly Jr., who was also nominated by Bush, said he was not inclined to label Utah’s voters as ‘‘mean-spirited and bigoted’’ for preserving a traditional view of marriage.

The hearing was the first to review one of the unanimous judicial rulings from around the country that state bans on gay marriage cannot stand in the wake of last summer’s Supreme Court action.


The Utah ban, approved by 66 percent of those voting in 2004, was struck down in December by US District Judge Robert Shelby in Salt Lake City.

Since then, federal judges in Virginia, Oklahoma, Texas, and Michigan have made similar findings. Courts in Tennessee, Ohio, and Kentucky have said those states must recognize gay marriages performed elsewhere.