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Tenth Circuit sets briefing schedule in Utah same-sex marriage appeal

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The Tenth Circuit Court of Appeals has set the briefing schedule for Kitchen v. Herbert, the challenge to Utah’s same-sex marriage ban. The order sets an expedited schedule that requires briefing to be completed by February 2014.

The Tenth Circuit notes that requests to allow more time “are very strongly discouraged, and will be considered only under extraordinary circumstances.”

The opening brief is due January 27, 2014. The response brief (from the plaintiffs, who are same-sex couples) is due February 18; any reply is due by February 25.

Oral arguments will take place at the Tenth Circuit sometime shortly after the final brief is filed.

The state of Utah is expected to ask the United States Supreme Court for a stay of the lower court’s ruling, though the request, which will be made initially to Justice Sotomayor, is not expected to be filed today.

Thanks to Kathleen Perrin for this filing

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  • 1. Breaking: Utah's Same-Sex&hellip  |  December 30, 2013 at 12:45 pm

    […] […]

  • 2. Matthew N  |  December 30, 2013 at 1:28 pm

    Utah had better hurry up and hire their star lawyer–only 4 weeks left for their filing.

  • 3. Craig Nelson  |  December 30, 2013 at 1:31 pm

    I must say Utah are putting on a star performance with true comedic value.

  • 4. Dr. Z  |  December 30, 2013 at 1:33 pm

    Indeed! This expedited schedule should further undermine Utah's request for a stay.

  • 5. Scottie Thomaston  |  December 30, 2013 at 1:36 pm

    This is a good point I hadn't thought about. They have yet to announce who the outside counsel is.

  • 6. jpmassar  |  December 30, 2013 at 2:00 pm

    Ya know, this is a pretty easy job for $2,000,000. All you have to do is cut and paste any or all of the failed arguments from all the other marriage equality cases into your brief, change XXX to Utah, and presto!

    I mean, is there even conceivably any new argument to deny people fundamental rights anyone is going to come up with in a couple of weeks?

  • 7. Scottie Thomaston  |  December 30, 2013 at 2:10 pm

    I don't think there is anything new even possible. But what actually confuses ME is the DOMA defense was about $3mil and that was a TON of cases and dealt with a federal law that impacted over 1,138 other laws.

    This is just one case in one state affecting a small amount of laws comparatively and it will be $2 million? Really?

  • 8. Straight Dave  |  December 30, 2013 at 2:53 pm

    There's a sucker born every minute. When a rich church wants something done, money is no object. In all seriousness, though, I think that number didn't come from any potential law firm, but from what an interested 3rd party was willing to offer to the cause if UT was willing to fight the case.

  • 9. Steve  |  December 31, 2013 at 11:13 am

    "interested 3rd party" = the Mormon cult

  • 10. peterplumber  |  December 30, 2013 at 2:58 pm

    I am losing track, but has marraige equality ever lost in federal court?

  • 11. Straight Dave  |  December 30, 2013 at 3:07 pm

    8th Circuit Nebraska case maybe about 5 years ago, Bruener or something like that. Sorry about lack of details, foggy memory, but yeah it happened. District court was in favor which raised quite a ruckus, but the 8th threw water on it.

  • 12. Straight Dave  |  December 30, 2013 at 3:10 pm

    The 8th cited Baker as precedent.

  • 13. Zack12  |  December 30, 2013 at 4:58 pm

    Which is why the Windsor ruling was so important,we now have something more recent instead of a bigoted ruling from 41 years ago.
    I would also say this,next to the 5th circuit,I see a ruling from the 8th circuit as most likely to go against any future lawsuits,as they have more Republicans then any other court.

  • 14. bendreyfus  |  December 30, 2013 at 5:17 pm

    Also Sevcik v. Sandoval (Nevada) and Jackson v. Abercrombie (Hawaii) lost at the district court level.

  • 15. palerobber  |  December 31, 2013 at 10:36 am

    btw, Sevcik and Jackson also cited Baker as controlling precendent.

  • 16. palerobber  |  December 31, 2013 at 10:48 am

    btw2, both the Sevcik and the Jackson opinion also found that, should the higher court decide Baker was not controlling after all, the plaintiffs' cases still failed on the merits using rational basis review.

  • 17. Steve  |  December 31, 2013 at 11:16 am

    Both of those had Mormon judges

  • 18. Dr. Z  |  December 30, 2013 at 5:16 pm

    Their panicky, poorly written stay request to the 10th Circuit may be about to backfire on them, since that's what was responsible for the expedited calendar.

  • 19. jpmassar  |  December 30, 2013 at 1:31 pm

    Sounds like oral arguments sometime in March. Decision in April or May?

  • 20. Scottie Thomaston  |  December 30, 2013 at 1:35 pm

    That's what I'd think. May or June at the absolute latest, but if the briefing is THIS fast I have to imagine the decision won't take too long. Which means they'd be asking SCOTUS to hear it in the October 2014 Term.

  • 21. Warren  |  December 30, 2013 at 2:46 pm

    Will the SCOTUS accept another 14th amendment case so soon after rejecting Prop 8? During the Prop 8 hearing there were questions as to why the case was accepted.

  • 22. Straight Dave  |  December 30, 2013 at 3:03 pm

    A 14th Amendment. case on the merits is quite different from one which has serious standing questions hanging over it. The standing issue arose as soon as Walker dotted the final i. Anyway, SCOTUS won't take this one unless they have to, like if the 10th overrules Shelby.

  • 23. ebohlman  |  December 30, 2013 at 9:49 pm

    Even then, I doubt they'd take it unless there were a conflicting ruling from Sevcik.

  • 24. Straight Dave  |  December 30, 2013 at 2:57 pm

    It should be a slam dunk, just Xerox Shelby's ruling and change the heading.

  • 25. George  |  December 30, 2013 at 1:51 pm

    Do we know who is on the 10th Cir. panel?

  • 26. Scottie Thomaston  |  December 30, 2013 at 2:11 pm

    We won't get that until one week before the argument unfortunately.

  • 27. Zack12  |  December 30, 2013 at 3:14 pm

    Mentioned this before but Timothy M. Tymkovich is NOT a name we want to see on the docket.
    While he could surprise us,he is the guy who tried to defend Romer V Evans…and lost.
    From everything I've read about him since then,he is still angry at that. This would be a perfect chance for him to stick it to us.

  • 28. Dr. Z  |  December 30, 2013 at 5:13 pm

    Interesting point. If we get unlucky in the draw of the three judge 10th Circuit panel and they rule against us, this could go to SCOTUS sooner than anyone anticipates.

  • 29. Stefan  |  December 30, 2013 at 6:24 pm

    Our side could request an en banc hearing.

  • 30. Warren  |  December 30, 2013 at 3:18 pm

    If the 10th let the lower court ruling stand, Oklahoma, Kansas, Colorado, and Wyoming bans on same sex marriages should be unconstitutional too.

  • 31. Straight Dave  |  December 30, 2013 at 3:25 pm

    Legally, that's very likely since UT is a clean case with no frills. What remains to be seen is if those other states just quickly fold or if they decide to be shitheads and force an actual lawsuit to occur, which they'll lose. I know malicious prosecution and frivolous lawsuits are unacceptable, but is there such a thing as a "malicious defense"?

  • 32. Observer  |  December 31, 2013 at 5:17 am

    Literally, no, but the plaintiffs have available to them something almost as good: a motion for judgment on the pleadings, which moves the case to immediate judgment by the court if a sham defense is shown.

  • 33. Richard Weatherwax  |  December 30, 2013 at 5:37 pm

    That is what scares me. Would the 10th be willing to make a decision on a controversial issue which would affect several states? The 9th narrowly structured there decision to only affect California. The 10th would not be able to give a similar narrow decision.

  • 34. Straight Dave  |  December 30, 2013 at 6:05 pm

    The 9th wasn't worried about the other states, several of which would have cheerfully accepted the gift. They were really trying to avoid a SCOTUS backlash.

    The 10th doesn't have that problem. For one thing, SCOTUS will most likely take a pass, having made their feelings known in Windsor. And the other states have no means for a backlash, at least not at the court.

  • 35. bendreyfus  |  December 30, 2013 at 5:22 pm

    According to the 10th Circuit calendar at… , the next argument session after the briefs are due is March 17-21, so that's when we can probably expect the oral argument (unless they add a special session).

  • 36. Brent W.  |  December 30, 2013 at 9:57 pm

    Can someone with a legal background explain to me how they draw the panel? Does "someone" (ie: a clerk) assign it? Is it by lot? How do we know it's on the "up and up"? I have often wondered this. Can someone explain?

  • 37. Observer  |  December 31, 2013 at 5:38 am

    The timing of the Utah case, Kitchen v. Herbert, puts it on a trajectory that tracks the 9th Circuits's consideration of the Nevada case, Sevcik v. Sandoval. Both cases present substantially the same constitutional challenges to to state same-sex marriage prohibitions. Thus, it seems likely that by summer, we should have decisions from two federal appellate courts: the 9th and the 10th. If both decisions are favorable to the gay community, and the Supreme Court denies cert., other federal appellate courts may very well follow those decisions. If the 9th Circuit's decision favors plaintiffs, and the 10th Circuit rules for the state, then that would create a split that would nearly guarantee review by the Supreme Court. Would anyone care to add to this?

  • 38. Craig Nelson  |  December 31, 2013 at 6:11 am

    I think it's interesting that the 9th already crafted a narrow ruling based on Romer. It got no traction at oral arguments. SCOTUS ended up at the same place (marriage for California only) but by the path of overruling the 9th (quite spectacularly, if by 5-4) on its doctrine of standing (though again, interesting Kennedy stood by the 9th in that regard). I can imagine the 9th might be quite nervous of entering the fray again and might be quite glad to rule after the 10th, preferably ruling in the same way. This is not to speak of rulings in Virginia, Michigan and Pennsylvania. We are now at the point, realistically, where marriage equality can only proceed through federal Court on constitutional grounds. If that was a complete no-no SCOTUS would have so ruled in Hollingsworth and Windsor would have been a (wholly) federalist ruling. I therefore deduce there are many reasons for good cheer.

    I can understand not wanting to rule nationally when only 9 states have marriage equality. Given there are approx 30 state constitutional bans one can have more than 20 marriage equality states by action in the federal courts. That is there is an upper limit for us of 20 states, which we are very close to now (18).

    I can well see SCOTUS staying out of the whole thing if rulings are going in the same direction, because by definition the law is clear and SCOTUS adds little to that. Where there are contrary rulings SCOTUS has no choice but to intervene. They could of course intervene earlier if the process becomes drawn out or circus like (in this Utah are running very dangerously close to that line and are drawing SCOTUS in earlier than they might have liked. And in a state with no marriage like civil unions that would compel SCOTUS to a broad ruling).

  • 39. Straight Dave  |  December 31, 2013 at 7:15 am

    Craig, can you clarify your 2nd paragraph? The federal courts, even below SCOTUS, could wipe out all 30 state constitutional bans. So I don't think you literally meant

    " one can have more than 20 marriage equality states by action in the federal courts"

    If you meant "… can't have ….. without action….", I would understand it better, but still disagree.

    What point were you trying to make here? Maybe I'm just dense today.

  • 40. Craig Nelson  |  December 31, 2013 at 11:29 am

    I think I was trying to say there is only so far you can go without federal (US constitutional) action (about 20 states and we now have 18, though California and Utah are by federal action). I'm kind of saying we have reached the limit of what can be expected on state courts interpreting the state constitution and legislative action. Of course in a few states one could anticipate a successful ballot action (e.g. Oregon, Nevada, Ohio – though if we are talking about constitutional rights one cannot expect a minority to be entirely beholden to the popular vote).

    Therefore, given we are now (with the above caveats entered) we are (give or take a state or two) in the domain of the federal courts and the US Constitution rather than 'leave it to the states and see what happens'. Yes lower courts can (and should) strike down state bans, but will ultimately only do so in tacit step with SCOTUS, that is Windsor and any subsequent actions (like denying a stay in Utah, denying Cert in future cases, as well of course any direct rulings in the event these allow any room for interpretation to lower courts).

    The consequence of all this is that we are now at the point where federal courts (with or without the assistance of SCOTUS, though doubtless with SCOTUS's superintendance, such as their consideration of Utah's request for a stay) may find there is little point waiting for anything else to happen. Gradualism therefore gives way to decisive action: very difficult to find on grounds of the US Constitution (at any level) without exerting a kind of domino effect upon other states.

    I think that is the point I was trying to make. In the dying embers of 2013 while we wait to see if Utah intends to burden Justice Sotomayor's end of year reflections with their ridiculous request for a stay, we stand on the threshold of what must surely be a momentous 2014 for the equal protection of the laws.

  • 41. Straight Dave  |  December 31, 2013 at 12:14 pm

    Totally clear, Craig. I had sort of guessed that's what you were trying to say. And yes, I do agree with you, the federal courts are the primary game left +/-. That's not such a bad deal since it will not take 30 separate cases to bring the rest of the house of cards down.

    I think Sotomayor should take her damn sweet time getting around to rejecting the stay motion. It doesn't hurt us this time. Either that or taking 2 split seconds to say, DENIED. NOT EVEN CLOSE.

  • 42. Equality On TrialUtah fil&hellip  |  December 31, 2013 at 1:16 pm

    […] his decision pending appeal.  The Tenth Circuit Court of Appeals later did the same, and yesterday issued an expedited briefing schedule that will conclude briefing in the case by the end of February. […]

  • 43. Policy and Legal Update &&hellip  |  January 6, 2014 at 7:02 am

    […] UTAH  •  On 30 December 2013, in Kitchen, et al. v. Utah Attorney General John Swallow, et al., a federal case challenging Utah’s constitutional amendment banning same-gender civil marriage, the Appeals Court set an expedited 2014 schedule:  state’s appeal brief by 27 January, couples’ response brief by 18 February, state’s reply brief by 25 February, oral arguments in March.  •  MEUSA Summary  •  News Source […]

  • 44. Equality On TrialSupreme &hellip  |  January 6, 2014 at 7:50 am

    […] Kitchen v. Herbert, is currently on appeal to the Tenth Circuit Court of Appeals, and briefing is on a fast-track. The opening brief is due on January 27, and all briefs in the case will be filed by February 25, […]

  • 45. Supreme Court Puts Same-S&hellip  |  January 6, 2014 at 10:27 pm

    […] Kitchen v. Herbert, is currently on appeal to the Tenth Circuit Court of Appeals, and briefing is on a fast-track. The opening brief is due on January 27, and all briefs in the case will be filed by February 25, […]

  • 46. Equality On TrialEquality&hellip  |  January 7, 2014 at 1:22 pm

    […] Circuit Court of Appeals has placed Kitchen v. Herbert, the Utah case, on an expedited briefing schedule.  With briefing due to be complete by February 25, the court could hear oral arguments on the […]

  • 47. Equality On TrialLeading &hellip  |  January 15, 2014 at 12:16 pm

    […] will be filed on January 27 at the Tenth Circuit Court of Appeals. The case is proceeding on an expedited track, with briefing expected to be concluded by February 25. This morning, EqualityOnTrial reported that […]

  • 48. Equality On TrialState of&hellip  |  January 17, 2014 at 11:38 pm

    […] has also noted before that the Tenth Circuit posted a briefing schedule that allows briefing to be wrapped up shortly before the Tenth Circuit’s March oral argument […]

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