Attorneys spar in federal court over same-sex marriage

SAN FRANCISCO - A U.S. federal appeals court considered same-sex marriage laws in three states Monday, with attorneys for both sides arguing over whether legalizing it would harm children.

There has been an explosion of litigation on same-sex marriage since a U.S. Supreme Court ruling in June 2013 that invalidated the core of the Defense of Marriage Act that defined marriage as only between a man and a woman for determining federal benefits.

The high court stopped short of declaring same-sex marriage legal nationwide, but many state and federal court judges have cited the landmark ruling in striking down statewide bans.

Nineteen states and Washington, D.C., now allow same-sex marriages.

The three judges on the 9th Circuit Court of Appeals in San Francisco - two of whom have ruled in previous cases in favor of gay rights - reserved many of their most pointed questions at the defenders of state bans in Idaho, Nevada and Hawaii.

Judge Marsha Berzon appeared critical of the attorney defending two of the bans, saying he was sending a message that families headed by same-sex couples were "second-rate."

"You're sending a message that these are less desirable families" she said.

Attorney Monte Neil Stewart faced tough questions from Berzon as he defended Idaho's ban.

Stewart told the panel that same-sex marriage would undermine children's right to be raised by a father and mother. Same-sex marriage would undercut the message that a man who fathers a child should get in a relationship with the female mother, he said.

"This is a contest between two different messages," Stewart said. "The message of man-woman marriage is: 'Men, you're valuable and important in the upbringing of the children you bring into this world. Women, you are valuable and important in the upbringing of children you bring into this world.' Genderless marriage does not send that message, indeed it undermines it."

Berzon questioned how same-sex marriage differed from the current model of marriage, which she called "genderless." Berzon said that with same-sex marriages occurring, "the train has already left the station."

Deborah Ferguson, an attorney representing same-sex marriage supporters opposed to Idaho's ban, said children of same-sex couples don't have the same protections as children of heterosexual couples.

The 9th Circuit heard arguments about Nevada and Hawaii's same-sex marriage ban as well. State lawmakers in Hawaii legalized same-sex marriage in December, but attorneys representing the Hawaii Family Forum, which opposes same-sex marriage, are asking the court to keep alive the forum's legal case.

Attorney Tara Borelli said Nevada's same-sex marriage ban sends a message to same-sex couples that they and their families are inferior. The ban is particularly damaging to children and humiliates them, Borelli said.

Stewart argued in favor the Nevada ban in part on the basis that states had the right to make choices about same-sex marriage.

The numerous same-sex marriage rulings in recent months - including one by a federal judge affirming Louisiana's law - have raised pressure on the U.S. Supreme Court to decide the issue. Last week, 15 states that allow same-sex marriage and 17 that don't asked the high court to weigh in.

The case for same-sex marriage was bolstered when the court earlier this week unveiled the names of the three judges assigned to decide the issue in those three states. They were all appointed by Democratic presidents.

The 9th Circuit is declared California's same-sex marriage ban unconstitutional in 2012. The court is under no deadline to rule in the current case.