Utah’s law banning same sex marriage will be considered by a three judge panel in the Tenth Circuit Court of Appeals on Thursday. Last year, a federal district court judge overturned the law and the U.S. Supreme Court stayed that decision. Since then, similar laws in several other states have been toppled in federal courts, but Utah is the first state to argue an appeal.
Derek Kitchen and Moudy Sbeity are one of three gay couples who sued the state of Utah over its law banning same sex marriage. The couple will be in the courtroom to hear the state’s appeal. Derek says he’s confident the three judge panel will rule in their favor.
“To us we believe that gay and lesbian couples have a constitutional right to marry. We believe that was validated with Judge Shelby’s ruling on December 20th. I ‘m hopeful that the Tenth Circuit will uphold Judge Shelby’s ruling,” says Kitchen.
Federal District Court Judge Robert Shelby ruled that Utah’s law violated the rights of gay couples under the equal protection clause of the 14th amendment. Since the ruling, lawyers in the Utah Attorney General’s office have put substantial resources into crafting an appeal, but Moudy says he and Derek knew their fight for marriage equality would be a long one.
“I’m glad that they’re so passionate about their stance because this will make one hell of an argument. Or voices are going to be heard louder and clearer because of the opposition,” says Sbeity
Paul Mero is president of the Sutherland Institute, a conservative think tank based in Salt Lake City. As stated in the briefs that Utah attorneys filed with the Tenth Circuit Court, the state’s defense of its marriage law centers around the idea that the primary purpose of marriage is not to cultivate a loving relationship between two adults, but to procreate and raise children. Mero says the state needs to protect its interest.
“If there wasn’t a societal benefit to the traditional definition of marriage, there wouldn’t be a case at all because there wouldn’t even be a law. I think what the other side has to do frankly is to show that there is a state interest in same sex marriage,” says Mero.
The belief that marriage is primarily an arrangement for procreation isn’t exclusive to Utah. John Eastman is a constitutional law professor at Chapman University in Southern California.
“Utah has determined that having an institution aimed at furthering the state’s very compelling interest in procreation of children by the people who bring them into the world – that the children benefit, the parents benefit and society benefits from that structure, which is like I said, grounded in biology and ratified throughout all of human history,” says Eastman.
Eastman also says that the Supreme Court addressed state regulation of marriage when the justices ruled in the Windsor case that struck down the federal Defense of Marriage Act.
“The notion that the Supreme Court already resolved that question in Windsor, which has led the district court in Utah and in Oklahoma and in a number of other places to strike down marriage policies on states that have continued to have a one man one woman definition of marriage, I think was grossly premature anticipating where the court may or may not go in the future,” says Eastman.
Ned Flaherty is with Marriage Equality USA. He says a law that violates the 14th amendment should rise above any state’s right to regulate marriage.
“The thinking among political leaders in Utah is that government can treat some citizens unfairly so long as a lot of people vote to do it. Everyone has to be treated fairly and what Utah is doing is saying for ninety percent of the population, there are no criteria to meet for marriage – just ask and you’re home free – and then for this other ten percent they’re saying, well not only can you never marry, but we have a long list of reasons why you can never marry and you could never meet these criteria period,” says Flaherty.
Back in Salt Lake, Derek and Moudy say they’re waiting to have a proper wedding once marriage equality in Utah is realized. Derek believes that day will come.
“I’m really hopeful that the panel of judges at the Tenth Circuit will see that Moudy and I are a family just like any other family out there. We have the same desires, hopes, wishes and dreams as any other family and we deserve the right to marry,” says Derek Kitchen.
The three judge panel will hear Utah’s argument Thursday and then it will take up a similar decision from Oklahoma on April 17. Texas and Michigan are preparing appeals in other federal circuits. One or more cases could finally be decided by the U.S. Supreme Court.