PASADENA, California (AP) – A lawyer for a gay couple suing for the right to wed argued before a federal appeals panel that it is unconstitutional to outlaw same-sex marriage.

One judge on the 9th U.S. Circuit Court of Appeals panel appeared unmoved during the April 4 hearing, and two others said the case could die on procedural grounds.

Arthur Smelt and Christopher Hammer, both 46, of Mission Viejo, sued after being denied a marriage license in Orange County. They claim California’s ban on same-sex marriage as well as federal laws against it are unconstitutional because they treat gays and lesbians differently than heterosexuals.

U.S. District Judge Gary Taylor last year ruled against the couple, saying the government’s desire to promote procreation is a valid reason for infringing on the rights of same-sex couples. The couple appealed the ruling.

But Judge Jerome Farris of the appellate court agreed with Taylor’s argument. “I think marriage is a bundle of sticks and sticks include procreation,” he said.

Richard Gilbert, the couple’s attorney, said procreation is not the important element of marriage, and Judge Sidney Thomas appeared to agree.

“I don’t understand, really, the procreation argument,” Thomas said.

The judges did not indicate when they would rule.

The couple’s case does not have the support of heavyweights in the fight for same-sex marriage, who are instead waging campaigns in state courts in California, Iowa, Washington, New Jersey, New York and elsewhere. They are seeking rulings similar to a 2003 decision that led to legal same-sex marriage in Massachusetts.

The strategy of the Lambda Legal Defense and Education Fund and the American Civil Liberties Union is to win in several U.S. states before going to the federal courts and eventually the Supreme Court. They say there is a strong national consensus against same-sex marriage and the Supreme Court would likely rule against it.

“We are interested in serious, incremental work in order to succeed,” said Jennifer Pizer, a Lambda attorney who attended the hearing.

Matthew Coles, director of the ACLU’s Lesbian and Gay Rights Project, said there is no “magic number” of states that need to approve same-sex marriage before the issue should go before the Supreme Court.

“We think, strategically, bringing a federal claim for marriage now is not a wise idea,” Coles said. “The Supreme Court is the country’s institutional conscience, and if you lose there, I think that sets you back.”

In an interview, Gilbert said Lambda and the ACLU’s strategy was failing.

Despite recent polls showing Americans are increasingly accepting of same-sex marriage, the movement has seen a backlash in the two years since Massachusetts started issuing marriage licenses and San Francisco Mayor Gavin Newsom’s short-lived and illegal move to allow same-sex couples to marry at City Hall.

In 2004, 11 states approved constitutional bans on same-sex marriage. Texas followed suit the following year, and voters in six or more states could be asked to amend their state constitutions similarly this year.

In Connecticut, lawmakers last year approved civil unions for same-sex couples, but also voted to define marriage as between a man and a woman.

However, in 1986, when many states had laws banning sodomy, the Supreme Court upheld a Georgia sodomy law. Then, in 2003, in what was then seen as the most important legal advance for gay rights, the justices struck down a Texas sodomy law in a decision that nullified the nation’s remaining 13 state sodomy laws.

“What we’ve learned was: You’re more likely to win at the Supreme Court if you’ve done your homework, if you have victories in state courts,” said Jon Davidson, legal director for the Lambda Legal Defense and Education Fund. “He [Gilbert] thinks he knows better and that we have somehow sold out, and I find that quite offensive.”

During the hearing, Justice Department lawyer Gregory Katsas argued that the traditional definition of marriage does not violate the Constitution.

Thomas and Judge Ferdinand Fernandez suggested the case may be premature, saying a state court of appeals in San Francisco is already weighing a lawsuit brought by gays and lesbians challenging California’s prohibition against same-sex marriage.

Gilbert, however, said he wanted a definitive ruling on whether federal laws and the 49 states that do not permit same-sex marriage are violating the U.S. Constitution’s equal protection guarantee.