The big day is here. The first federal appellate case post-Windsor made its way through oral arguments this morning, and it was not without its own wave of drama.

Even before the arguments began, Utah officials backtracked on authority used in their briefs. Then, in oral arguments, the panel seemed to be deeply divided, with two judges sticking to their predicted ideological lines, and a third serving as the wildcard.

As the first of a coming wave of same-sex marriage appeals in this circuit, and many other circuit courts of appeal, this case is important as authority for the remaining cases, as well as a possible vehicle for a Supreme Court appeal.

Yesterday, the State of Utah’s Attorney General Office filed a “supplemental letter” with the court, addressing a study that the state’s brief cited twice in footnotes in its opening brief. The study purported to address “whether same-sex parenting produces child outcomes that are comparable to man-woman parenting,” but has since been widely discredited.

In the letter, the state argued:

Okay, so why was this cited then? The study, per the letter, didn’t even measure children raised in same-sex households, but instead examined children raised by a parent who had engaged in a same-sex relationship at some point.

[Our] principal concern is the potential long-term impact of a redefinition of marriage on the children of heterosexual parents. The debate over man-woman versus same-sex parenting has little if any bearing on that issue, given that being raised in a same-sex household would normally not be one of the alternatives available to children of heterosexual parents.

  • Herbert v. Kitchen (Oral Argument Recordings – Tenth Circuit)
  • Utah Gay Marriage Opponents Drop Debunked Research, Reduce Argument to Gibberish (Slate)
  • Do Attorneys General Have the Right to Decline to Defend Laws? (FindLaw’s Strategist Blog)

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