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Federal judges hearing Utah gay marriage case appear divided

BY NICHOLAS RICCARDI
ASSOCIATED PRESS

DENVER -- A three-judge panel appeared sharply divided as they questioned attorneys Thursday at a hearing over whether to uphold a lower court's ruling that struck down Utah's ban on gay marriage.

One of the judges, Carlos F. Lucero, compared the state's argument that the ban should to the U.S. Supreme Court's infamous Dred Scott decision that denied citizenship and constitutional protections to blacks before the Civil War.

"To argue that public policy can trump a declared constitutional right would be a remarkable proposition," Lucero said.

But Judge Paul J. Kelly Jr. suggested Utah does have the right to reaffirm what has been a centuries-long tradition of heterosexual marriage.

"You are just taking the position they are wrong on this. .... We'll just ignore what the people have decided and the Legislature has done," Kelly said. The swing vote in the case appears to be justice Jerome A. Holmes, who sharply challenged attorneys for both sides.

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