DENVER — Sharp questioning Thursday by a divided panel of appellate judges considering Utah's ban on gay marriages showed that, while same-sex marriage has had a remarkable winning streak lately, its legal status remains uncertain.
The three judges of the 10th Circuit Court of Appeals were divided over how much the landscape has changed since the U.S. Supreme Court last year struck down the Defense of Marriage Act. The high court found that the law violated gay couples' due process rights by forbidding the federal government from recognizing their marriages.
An attorney representing three Utah gay couples argued that meant any state law that bars gays from something as fundamentally important as marriage should be voided. Eight federal judges have, to varying degrees, agreed since the Supreme Court ruling, striking down a series of state gay marriage bans, or bans on recognizing same-sex marriages from other states.
One of those judges in December struck down Utah's 2004 voter-approved gay marriage ban, and it was the appeal of that ruling that the randomly selected three-judge panel heard Thursday. It is the first time gay marriage has reached the appellate court level since the Supreme Court's ruling in June 2013.
Judge Carlos Lucero cited gay marriage's legal success and compared the state's argument that the ban should stand to the Supreme Court's infamous Dred Scott decision that denied citizenship and constitutional protections to blacks before the Civil War.
"The law does not allow the type of discriminatory behavior that is at issue in these type of cases," Lucero said.
But Utah's attorney argued that the Supreme Court left the definition of marriage to states, and that the lower court judges have erred. Judge Paul J. Kelly Jr. suggested Utah's voters have the right to reaffirm what has been a centuries-long tradition of heterosexual marriage.