A three-judge panel of the 10th U.S. Circuit Court of Appeals heard oral arguments this morning in a case that could be the first at the federal appellate level to strike down a state ban on same-sex unions.
The judges left both sides of the marriage debate scratching their heads after court adjourned.
One judge seemed to favor Utah’s defense of its voter-approved constitutional amendment that upholds the traditional definition of marriage as between one man and one woman. Another judge seemed to side with plaintiffs, who claim the ban violates their constitutional rights. The third judge seemed sympathetic to both sides.
Judge Jerome A. Holmes, appointed to the court by President George W. Bush, compared Utah’s ban to Virginia’s prohibition against interracial marriage, which the U.S. Supreme Court struck down in 1967. But he also challenged the plaintiffs’attorneys to explain why the state’s voters shouldn’t be allowed to decide how they want to define marriage.
That question is interesting in a state with historical ties to polygamy. Utah’s attorneys said if the court overturns the same-sex marriage ban, the state eventually would be forced to recognize unions between multiple people.
The court is not expected to rule for several months. No matter what the judges decide, the losing party is certain to appeal, either to the court’s full panel or directly to the U.S. Supreme Court. The same judges will hear a challenge to Oklahoma’s same-sex marriage ban next week.
It’s not clear what immediate effect a ruling in favor of the same-sex couples would have. After a lower court judge struck down the ban in December, court clerks issued marriage licenses to about 1,000 couples. The U.S. Supreme Court ordered them to stop after the state filed an emergency appeal. While the state has refused to recognize those marriages, the Obama administration said it would acknowledge the unions for federal purposes.
After the Supreme Court issued its emergency stay, all lower court judges who have struck down bans stayed their own rulings in anticipation of appeals.
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