DENVER — On the eve of arguments at the 10th Circuit Court of Appeals over Utah's ban on same-sex couples' marriages, the state filed a last-minute notice with the court distancing the state from a professor whose work was recently lambasted by another federal judge.
In a letter marked on the docket as having been filed at 6:22 p.m. Wednesday, Gene Schaerr — the lawyer defending Utah's ban for Utah Gov. Gary Herbert — told the court that he was sending the unusual document "in response to recent press reports and analysis of the study by Professor Mark Regnerus," who the state relied on in its briefing at the appeals court for information about "the debate over whether same-sex parenting produces child outcomes that are comparable to man- woman parenting."
After claiming that the Regnerus study — mentioned in two footnotes in the state's brief — had "very limited relevance" to the state's argument, Schaerr writes, "[T]he Regnerus study cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements."
The move comes less than three weeks after a federal judge in Michigan — who heard testimony from Regnerus in the case challenging that state's marriage ban — concluded of his authority as an expert, "The Court finds Regnerus' testimony entirely unbelievable and not worthy of serious consideration." LGBT advocates and Regnerus' own colleagues had similarly criticized the study.
It was not immediately clear how or whether the court would utilize the state's letter in the arguments scheduled to start at 10 a.m. Thursday in the Denver courthouse of the 10th Circuit Court of Appeals.
The appeals court hearing is a part of the rapid movement on the marriage issue since the Supreme Court struck down the federal ban on recognizing such marriages last June in the case of United States v. Windsor. Since then, every federal trial judge to hear a marriage case or a case about recognizing out-of-state marriages of same-sex couples has decided in favor of the same-sex couples. Five courts of appeals now are considering such cases, and Thursday's hearing in Denver is the first post-Windsor appeals court hearing on the issue.
The judges slated to hear the case are Judge Paul J. Kelly Jr., appointed by President George H.W. Bush in 1992; Judge Carlos F. Lucero, appointed by President Clinton in 1995; and Judge Jerome A. Holmes, appointed by President George W. Bush in 2006. Kelly was a state lawmaker in New Mexico for four years in the late 1970s and early 1980s. Lucero, the first Hispanic judge to sit on the 10th Circuit, was a private lawyer in Colorado before his appointment. Holmes, the first black judge to sit on the 10th Circuit, clerked for the 10th Circuit before entering private practice and then serving as an assistant U.S. attorney in Oklahoma before reentering private practice there.
Schaerr — a D.C. lawyer who left his job as a partner at the prominent law firm of Winston & Strawn to represent Utah — will be facing off against Peggy Tomsic, the lawyer from the Salt Lake City firm of Magelby & Greenwood that brought the challenge to the amendment.
Tomsic will be arguing for the same-sex couples who brought the challenge to Utah's ban, which was struck down on Dec. 20, 2013, by U.S. District Court Judge Robert Shelby. Shelby did not issue a stay, putting his ruling on hold, and more than 1,300 same-sex couples married after both Shelby and the 10th Circuit denied the state's request for a stay. The marriages did stop, at least temporarily, when the Supreme Court issued a stay during the appeal on Jan. 6.
The decision from the 10th Circuit will have an impact on similar laws across the circuit, which includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. New Mexico already has marriage equality, but all the other states in the circuit except Wyoming have constitutional bans on same-sex couples' marriages. Wyoming only has a statutory ban on such marriages.
In addition to the Utah case, the same judges in the 10th Circuit will be hearing Oklahoma's appeal of a January ruling striking down that state's marriage ban.