DAVID GREENE, HOST:
And let's turn now to the ongoing debate over same-sex marriage. A number of states - Oklahoma, Virginia, Texas and Utah - had bans on same-sex marriage that were overturned by federal district courts. In Utah that did not mean marriages could go forward. The Supreme Court held them up, anticipating an appeal. And today Utah becomes the first of those states to argue an appeal, defending the state's right to ban gay marriages before the 10th Circuit Court of Appeals. From member station KUER in Salt Lake City, Terry Gildea reports.
TERRY GILDEA, BYLINE: Derek Kitchen and Moudi 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.
DEREK KITCHEN: To us we believe that gay and lesbian couples have a constitutional right to marry. We believe that that was validated with Judge Shelby's ruling on December 20 and I'm hopeful that the 10th Circuit will uphold Judge Shelby's ruling.
GILDEA: 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 Moudi Sbeity says he and Derek knew their fight for marriage equality would be a long one.
MOUDI SBEITY: I'm glad that they're so passionate about their stance because this will make one hell of an argument. Our voices are going to be heard louder and clearer because of the opposition.
PAUL MERO: I think what the other side has to do, frankly, is to show that there is a state interest in same-sex marriage.
GILDEA: Paul Mero is the 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 10th 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.
MERO: 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.
GILDEA: 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.
JOHN EASTMAN: Utah has determined that having an institution aimed at furthering the state's very compelling interest in the procreation of children by the people that bring them into the world, that the children benefit, the parents benefit and society benefits from that structure, which is grounded in biology and ratified throughout all of human history.
GILDEA: 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.
EASTMAN: 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.
NED FLAHERTY: 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.
GILDEA: 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.
FLAHERTY: Everyone has to be treated fairly, and what Utah is doing is saying for 90 percent of the population there are no criteria to meet for marriage. Just ask and you're home free. And then for this other 10 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 anyway, period.
GILDEA: Back in Salt Lake, Derek and Moody say they're waiting to have a proper wedding once marriage equality in Utah is realized. Derek believes that day will come.
KITCHEN: I'm really hopeful that the panel of judges at the 10th circuit will see that Moody 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.
GILDEA: The three-judge panel will hear Utah's argument today 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. For NPR News, I'm Terry Gildea in Salt Lake City. Transcript provided by NPR, Copyright NPR.
