Gay couples challenge Utah's marriage ban

Plaintiffs Derek Kitchen (L) and his partner Moudi Sbeity stand outside the Frank E. Moss federal courthouse in Salt Lake City, Utah, Dec 4, 2013. The couple is challenging Utah's same-sex marriage ban. [Photo/Agencies]

SALT LAKE CITY - A challenge to Utah's same-sex marriage ban by three gay couples is scheduled to be back in court Wednesday as a federal court judge hears arguments in a case being closely watched around the US.

US District Judge Robert J. Shelby is expected to ask many questions during the hearing, but his ruling will likely come at a later date.

There are 46 similar court challenges to same-sex marriage bans in 22 states, but Utah's case is among the ones being closely watched because of the state's history of being staunchly against the notion of allowing gays and lesbians to wed, said Jon Davidson, director of Lambda Legal which pursues litigation on a wide range of LGBT issues across the country.

Utah is home to The Church of Jesus Christ of Latter-day Saints, which believes homosexual activity is a sin and is known for its efforts in helping California pass its anti-gay marriage constitutional amendment. And the state was among the first to pass a state amendment banning same-sex marriage, which it did in 2004, Davidson said.

"Utah has a particularly symbolic position in the history of the struggle of same sex couples to be able to marry," Davidson said.

Utah state attorneys defend the state amendment by saying it promotes the state's interest in "responsible procreation" and the "optimal mode of child-rearing." Philip Lott of the Utah Attorney General's Office said he expects emotional arguments during Wednesday's hearing, which starts at 10 am and is expected to last about two hours.

Lawyers for the same-sex couples argue the choice of a marriage partner is a "fundamental right and liberty interest" protected by the US Constitution and that the state amendment approved in 2004 discriminates against same sex couples in committed relationships.

Peggy Tomsic, the attorney who represents the three couples, said the state can't justify treating same-sex couples differently than opposite-sex couples after last summer's ruling from the US Supreme Court. In that decision, the country's highest court struck down part of the Defense of Marriage Act, which stipulate that marriage was between a man and woman, was struck down earlier this year by the US Supreme Court.

Of the three couples who filed the lawsuit in March, two are lesbians and the other gay men. One of the lesbian couples was legally married in Iowa, Tomsic said. They say the state's ban has caused them humiliation, emotional distress, pain, psychological harm and stigma.

Shelby has told attorneys that he hopes to make a ruling by early January.