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State officials in Utah same-sex marriage appeal ask Tenth Circuit for 10-day extension to file opening brief

LGBT Legal Cases Marriage equality Marriage Equality Trials

State officials in Utah are asking the Tenth Circuit Court of appeals for a 10-day extension to file their opening brief in the Kitchen v. Herbert appeal. The request was anticipated by some, since the opening brief is due in ten days, and the state only hired its outside counsel for the marriage litigation yesterday. The appeal is on a very fast track in the Tenth Circuit, and briefing was expected to be completed late next month. The Tenth Circuit has said that any request for extension of time “are very strongly discouraged, and will be considered only under extraordinary circumstances.”

Citing the “requirements of state procurement law,” the state says in its request that it could only hire counsel yesterday. The state adds that “the Clerk of the Court indicated to Plaintiffs and State Defendants that the Court is considering extending each of the existing briefing deadlines by 2 or 3 days” and that would mean that even with an extension of time to file an opening brief, only 7-8 days would be added to the briefing schedule.

The request also notes the recent decision in district court in Oklahoma, striking down that state’s same-sex marriage ban. Bishop v. United States is on appeal, also to the Tenth Circuit. The state suggests the possibility that the Tenth Circuit may want to put the cases on a similar track, pointing out that “the Court may want to place the Utah and Oklahoma appeals on similar briefing and argument tracks to conserve judicial resources and the resources of amici who will have the same interests in both matters.”

EqualityOnTrial 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 schedule. The appeals court hears arguments from March 17-21. Today, the argument calendar for March 17-20 has been posted, and Kitchen v. Herbert is not yet listed. Presumably, the court could list it for March 21; otherwise, they’d hear the case in May.

If the 10-day extension request is granted, it may not affect the timing of oral arguments: briefs would still be filed well before March 21, the end of the March calendar.

Thanks to Kathleen Perrin for these filings

For more information on Kitchen v. Herbert from The Civil Rights Litigation Clearinghouse, click here.

Help us travel to Denver this spring to cover oral arguments in the Utah marriage equality case. You won’t regret it, and you can help EqualityOnTrial be a part of history in the making. Please consider making a tax-deductible donation to EqualityOnTrial in the new year to help us continue this mission–any amount helps!


  • 1. peterplumber  |  January 17, 2014 at 12:29 pm

    Lack of planning on your part does not constitute an emergency on my part. Request denied.

    Oh, wait, I am not the Judge….

  • 2. Reformed  |  January 17, 2014 at 1:22 pm

    As to conserving judicial resources . . . Conserve this! The judge might also say.

  • 3. Matt N  |  January 18, 2014 at 10:24 am

    If they want to conserve judicial resources, they should have let the district court's ruling stand and let the marriages proceed…

  • 4. Dr. Z  |  January 17, 2014 at 12:35 pm

    I thought the 10th Circuit wasn't going to entertain any requests for a delay. Something tells me that if the 10th has to bend some rules here, they won't be in our favor. 'Cause than just never seems to happen, somehow.

  • 5. Bruno71  |  January 17, 2014 at 12:46 pm

    Let's not read something into every single thing, I think. The attitude of the 10th Circuit may have changed after SCOTUS put a stay on the marriages as well. They may entertain the notion of slowing down the case.

  • 6. Dr. Z  |  January 17, 2014 at 1:09 pm

    There's ALWAYS a plausible excuse. And another. And another.

    Going back to Bowers and before, there's a long history of the courts somehow finding one excuse after another for bending the normal rules in such a way that disadvantages us. The latest examples include ignoring/failing to apply the standards for heightened scrutiny to sexual orientation, and the SCOTUS ignoring its own guidelines for issuing stays in the Utah case.

  • 7. Bruno71  |  January 17, 2014 at 1:39 pm

    All I'm saying is I don't think an extension here would signal how they'd rule. Yeah, as we've seen with SCOTUS and the stay, they'll bend over backwards to make sure it doesn't look like the bigots don't get a say or whatever. I just can't imagine the 10th would rule against us given 2 favorable rulings in Utah and Oklahoma now. But I can imagine they'd start slowing things down after SCOTUS signaled they want that to happen.

  • 8. Stefan  |  January 17, 2014 at 1:47 pm

    I disagree. If anything the Supreme Court granting the stay will likely make them want to end the case and quickly even more so then before.

  • 9. Bruno71  |  January 17, 2014 at 1:48 pm

    I agree with you. This is a hypothetical though, if the 10th were to actually grant the extension.

  • 10. Dr. Z  |  January 17, 2014 at 5:30 pm

    We're referring to two different things. I was talking about granting the time extension, after earlier saying they would not consider a time extension. Can you imagine they'd have bent that rule if the situation were reversed and WE were the ones making the request?

  • 11. Bruno71  |  January 17, 2014 at 5:45 pm

    Sorry, I realize I read your post wrong. When you said "they won't be in our favor," I thought you were saying they wouldn't rule in our favor.

  • 12. truthspew  |  January 17, 2014 at 12:49 pm

    I'm a little perplexed that they had to hire outside counsel. In a lot of state the Attorney General or District Attorney has adequate staff to defend the states interests.

    And the bigots really don't have anything to stand upon. The entirety of their arguments are based on very few Biblical passages, which haven't changed. So the arguments either need to get better or else they're going to lose at the appellate level.

  • 13. StraightDave  |  January 17, 2014 at 1:37 pm

    The Utah AG fired his entire legal staff on XMAS eve so they had to start all over. Not that I have the slightest sympathy for them whatsoever. In my dreams, the 10th tells them maybe they should have thought about that before passing laws that the bozos they elected and appointed were too incompetent to defend.

  • 14. Mike in Baltimore  |  January 17, 2014 at 3:25 pm

    "The Utah AG fired his entire legal staff on XMAS eve. . . ."

    That's Utah's problem, not the problem of the 10th Circuit or anyone else's problem.

    Utah asked for an expedited schedule, which was granted. The state wanted an expedited schedule in December (before the staff firing), now doesn't want it, in effect?

    The Federal contract rules have provisions for exceptional cases, where timelines can be adjusted or deferred. If Utah's laws don't allow such, maybe Utah needs to amend the state laws on contracting. Again, Utah's problem, not the problem of the 10th or anyone else.

    Looks to me like Utah wants it's cake whole, and wants to eat it too. I'm crying crocodile tears for the state, playing 'My heart weeps for you' on the world's smallest violin, etc.

    I hope the 10th doesn't grant an extension, and keeps to the original schedule Utah asked (or demanded?) for the case.

  • 15. Dr. Z  |  January 17, 2014 at 5:37 pm

    Well there is precedent for Utah wanting it both ways. On October 11 they asked for a summary judgment, then when they got it they started whining about why didn't the judge conduct a trial instead?

  • 16. Rick O.  |  January 17, 2014 at 2:03 pm

    Utah AG office was in complete disarray – recently elected AG resigned, he and former AG (good Moromon boys) under influence peddling/bribery investigations. You also have to realize these small Western Republican states have low taxes and virtually no government resources. Few laws, fewer enforcers and zero contingency resources. Living here is caveat emptor with no effective state control of just about anything. Living in Colorado after Washington, I can assure you actually achieving "limited government" has limited appeal.

  • 17. Larry  |  January 17, 2014 at 2:11 pm

    There's a nice irony if conservative "limited government" is responsible for Utah's poor handling of this case.

    I assume the plaintiffs will oppose the request, especially with the stay in place. How often are extensions given as a matter of course, rather than based on any sort of merits analysis?

  • 18. Dr. Z  |  January 17, 2014 at 5:42 pm

    Oklahoma doesn't even have funds to fix its crumbling capitol building. The front steps are roped off because they're too dangerous to use. Quite a majestic sight.

    When I was a kid we used to joke that an "Okie parking brake" was a hunk of brick behind the back wheel of a rusted-out pickup truck. Preferably one with several guns against the back window.

  • 19. James  |  January 17, 2014 at 12:52 pm

    Meh, it won't matter so let them have their 10 days. I was always anticipating a ruling by around summertime anyway; a minor delay isn't going to prevent that. We're still on the path for cert to be granted later this year by SCOTUS for an appellate ruling (either from the 9th or 10th circuits) with a corresponding nationwide ruling by June 2015.

    Completely off topic, but does anyone here know what happened to Finland? I could've swore I heard that they were going to have marriage equality last year and that didn't happen.

  • 20. Bruno71  |  January 17, 2014 at 1:41 pm

    Not sure that path will lead to cert, but it might.

    Regarding Finland, it's set to go before their parliament sometime early this year.

  • 21. StraightDave  |  January 17, 2014 at 1:42 pm

    Some committee in Finland's parliament wimped out and voted against even considering the bill. The voters then responded by approving an initiative that legally forced the parliament to seriously take up the bill. They can vote however they like, but it forces them to take a position on the record. I don't know what their schedule is, but Wikipedia usually has a good summary for stuff like this.

  • 22. Finn  |  January 17, 2014 at 1:42 pm

    As to Finland, last spring a parliamentary committee buried a marriage equality bill proposed by members. The bill was proposed by members of parliament because a government bill was precluded by inclusion of Christian democrats to the governing coalition. There was a strong public reaction to the negative committee vote, and now a citizen initiative supporting equality – signed by 160,000 voters – has been submitted to the parliament. This is something the committee can't ignore, and it is almost certain the bill will get an up or down vote by the whole parliament by the end of the year. The vote is too close to call for certain but the bill has a reasonable chance to pass.

  • 23. James  |  January 17, 2014 at 8:04 pm

    Awesome, thanks for the quick summary. Hopefully we can have marriage equality in every Nordic nation soon enough then.

  • 24. Corey  |  January 17, 2014 at 1:03 pm

    I wonder how the decision to fast-track is balanced by the Oklahoma case. If they combine the cases, do they put the hurry-up on Oklahoma or put the brakes on Utah?

  • 25. StraightDave  |  January 17, 2014 at 1:43 pm

    Do you see OK hurrying? I don't.

  • 26. Lynn E  |  January 21, 2014 at 1:37 am

    Utah wanted a fast track while marriage was legal. Now there is a stay, they want a delay. Oklahoma's ruling included a stay, so there is no hurry. Requesting that the cases are combined is just a delay tactic, as I would think amici of the Oklahoma case were probably already planning to support Utah. I hope the extension is denied (or severely limited), and the cases handled separately.

  • 27. Seth From Maryland  |  January 17, 2014 at 1:28 pm

    Looks like republicans leaders in Indiana are getting scared that it won't pass the comm so they are now thinking about taking extreme step to get this passed in the comm:

  • 28. Seth From Maryland  |  January 17, 2014 at 1:34 pm

    it looks like we might actually been able to swing all 3 of those Indiana republican swing votes to our side , it just goes to show how fast this amd is losing support

  • 29. Bruno71  |  January 17, 2014 at 1:42 pm

    Except now their jobs are at stake. Let's see what they're made of in light of these extreme measures from their leadership.

  • 30. Stefan  |  January 17, 2014 at 1:51 pm

    I doubt Bosma will follow through with it. As he said, it's only been done once in his 28 year career. Such actions typically have negative consequences for the ruling party, as was the case in Colorado where the Republicans lost control of the House after squashing the civil unions bill.

  • 31. Steve  |  January 19, 2014 at 4:47 am

    Indiana is far redder than Colorado though.

  • 32. Stefan  |  January 17, 2014 at 1:52 pm

    They're jobs are not at stake, just their positions on the committee.

  • 33. Bruno71  |  January 17, 2014 at 1:54 pm

    I think a committee position can be referred to as a "job."

  • 34. Stefan  |  January 17, 2014 at 2:03 pm

    Fair enough. I meant to say they will still obviously hold their positions in the legislature and collect a paycheck.

  • 35. Bruno71  |  January 17, 2014 at 2:14 pm

    I hope that's enough for them, but even one of the three changing their minds due to pressure is going to probably bring this to the people. Hopefully the Speaker is just grandstanding.

  • 36. Seth From Maryland  |  January 17, 2014 at 2:22 pm

    it would be nice if we was able to get another republican vote on our side just in case to make sure this thing is dead

  • 37. Mike in Baltimore  |  January 17, 2014 at 4:01 pm

    Indiana is in the 7th Circuit. Does anyone have a feel for how that court might rule?

    (The current make-up is seven Judges appointed by Republican Presidents, and four appointed by Democratic Presidents, with one vacancy. Remember, though, that who appoints is not an automatic accurate indication of how a judge will rule – look at Justices Kennedy and Blackmon, who were appointed by Republican Presidents.)

  • 38. Carol  |  January 18, 2014 at 2:38 pm

    (And Chief Justice Warren was appointed by Eisenhower.)

  • 39. Mike in Baltimore  |  January 18, 2014 at 7:20 pm

    True, but I was trying to limit the 'exceptions to the rule' to 'recent justices'.

    Warren left SCOTUS almost 45 years ago, while Blackmun (whose name I spelled incorrectly above) left less than 20 years ago and Kennedy is still on SCOTUS.


  • 40. Stefan  |  January 18, 2014 at 1:29 am

    Assuming none of the other 6 Republicans go our way, which from what I've now heard is a distinct possibility.

    Remember too that the bill can be amended right there in committee, which could also happen. Either way the clock is ticking if they want to pass it.

  • 41. Stefan  |  January 18, 2014 at 2:37 am

    Remember too that if it does make it out of committee un-amended, there will still be many more opportunities to kill/amend it. If amended it will start the process over, requiring an identical bill to pass during the 2015/2016 legislative session, before going to voters in 2016.

  • 42. Mike in Baltimore  |  January 18, 2014 at 8:09 pm

    Actually, if it is to go to the state voters, the bill in substantially the same form MUST pass two consecutive legislative sessions with an intervening General Election. There is no requirement for the bills passed by the legislature to be exact copies of each other, just the 'end result' be similar. For a state constitutional amendment to go to the voters in 2016, there would have to be a bill passed THIS legislative session, a General Election (in November 2014), then an exact or substantially similar bill again in either 2015 or 2016, then and only then could it go to the voters, in November 2016.

    If the current bill (amended or not) does not pass, what are the probabilities for a different bill for the same purpose passing this year? Not very good, in my opinion.

    If amended, then passed, it would still be legit and could go to the voters in 2014. If not passed this year, and no new bill is passed in its place, the whole process would have to begin again in 2015 or 2016, General Election in 2016, then pass the legislature in 2017 or 2018, then to the voters in November 2018.

    The state legislature was prepared to pass the bill in 2013, but decided to wait until 2014 to see if SCOTUS made any ruling to force changes in the bill as it then stood (the Indiana state legislature does not meet year-round; the SCOTUS decision in 2013 was AFTER the legislative session ended). SCOTUS didn't make a ruling that would have necessitated a change, so that is why the bill now, unless amended, reads exactly the same as before. And that is why, even if amended, the bill to amend the state constitution, if passed, will go to the voters this year (as would have happened if the bill to amend the state constitution had passed in 2013).

    The main reason the bill must be killed this year is that every year that passes now, the lower the probability of any similar bill passing in the future (IMO, and the opinion of many others).

  • 43. Stefan  |  January 19, 2014 at 2:07 am

    That is not my understanding at all. The bill must be an identical copy of the last one, and if even one word is different it must be approved again.

  • 44. bythesea  |  January 19, 2014 at 2:31 am

    I believe your take is correct.

  • 45. Mike in Baltimore  |  January 19, 2014 at 10:18 am

    If you are correct, then why is HJR3 being considered for amendment and still will be eligible for the 2014 General Election ballot?

    Why, when the proposed amendment was eligible for a legislative vote in 2013, did the leadership (all Republicans) delay the vote until 2014 in case SCOTUS ruled later in 2013 in a manner that would have necessitated a change in the proposed amendment?

    Why, if it needs to be identical, would the Indiana state House Leader (Brian Bosma) suggest tweaking the amendment?

    "Bosma, for the first time on Tuesday [11/20/2013], suggested the possibility of altering the proposed amendment, potentially ridding it of a clause that also bans civil unions."


    "Bosma said there is precedent from the 1960s and 1970s to allow a change, but he noted that the issue has never been tested in the courts."

    And do you REALLY think HJR3 might be defeated, then another bill substantially the same will pass this year, then again in 2015 or 2016, then sent to the voters in 2016?

    Add in that in 2011, polling showed a plurality of the state's voters against such an amendment, but now show an actual majority of the state's voters against such an amendment, with support dropping. The more years that elapse, the greater the probability the voters will defeat it, or even (if enacted) repeal it.

  • 46. Stefan  |  January 19, 2014 at 4:50 pm

    The statements about amending it and still having it go on the ballot this year were wishful thinking which have since dissipated. It was initially claimed that it had never really been tested and could end up in the state court, but now they seem to have come to the realization that they can't do that.

  • 47. Mike in Baltimore  |  January 20, 2014 at 9:24 am

    "which have since dissipated."

    Or is that YOUR wishful thinking?

    You are correct in that this has never been tested in the Indiana state courts, but since the state constitution has amendments from the 1960s and 1970s that followed the same type of path this amendment has taken, that says something about the process, doesn't it?

    And what happens if/when this amendment passes, but is taken to court? Maybe Indiana goes back to biannual legislative sessions? Maybe the Governor is term-limited to a single term? Those are the types of amendments to the state constitution that were passed in the 1960s and 1970s.

    Exactly who is the "they" who you say are now realizing such action was "wishful thinking" and "they" can't do what "they" want to do?

    Why can't "they" do it? After all, there were several amendments to the state constitution passed in the 1960s and 1970s that when passed in the state legislature a 2nd time were not EXACTLY the same as when passed the first time.

    Face it. No Indiana state court has ruled on this issue, so no one can definitively say what is, or is not, possible. Based on previous constitutional amendments, though, the courts might just (and probably will) say "It was done in the past with no one protesting, so we will not upset the precedent."

  • 48. Rick O.  |  January 17, 2014 at 2:14 pm

    All part of the Republican civil war, which is going to get really hot in 2 years.

  • 49. Lymis  |  January 17, 2014 at 3:37 pm

    Nope. Not this round. It's going to get insane in the primaries, and then they'll all link arms and march in lockstep for the general election, at least upticket – there will likely be a lot of Tea Party vs. GOP split tickets down in the trenches.

    If they get shellacked this time, then NEXT time, they'll unravel big time. They're still at the fingers in their ears la-la-la phase, ESPECIALLY if it looks even remotely likely that Hillary Clinton will be the Democratic presidential nominee.

  • 50. Dr. Z  |  January 17, 2014 at 8:47 pm

    Agreed. They will have to really crater in the next two elections before it sinks in.

    "If you was anybody else I'd say 'let that be a lesson to ya.' But you seem like a fella who's gonna need more than one lesson. And, you're get more than one lesson." – Citizen Kane

  • 51. JayJonson  |  January 18, 2014 at 6:28 am

    One lesson the Indiana pols seem not to have learned is the lesson from Minnesota. There they thought the marriage ban was an ideal wedge issue to bring out the conservative base. I guess it did that, but it also brought out the Democratic base in record numbers. Not only did the amendment lose, but the Democrats took control of both houses of the legislature and promptly passed a marriage equality law. I realize that Indiana is not Minnesota, but they ought to know that they are playing with fire and that even if they pass the ban, it will soon go the same way as Utah's and Oklahoma's.

  • 52. Stefan  |  January 18, 2014 at 8:54 am

    I'm expecting that if it is approved by the legislature and voters that our side will immediately file a lawsuit and prevent it from ever going into effect. We're at the point now where we do have that kind of legal sway.

  • 53. Seth From Maryland  |  January 18, 2014 at 12:28 pm

    i agree , anyway if they manage to get this through , i have some friends that live in Indiana , they said there Minnesota like feeling right now in the state , our side continue to gain momentum and is organizing really well , this very well could be another Minnesota in the making

  • 54. Mike in Baltimore  |  January 18, 2014 at 8:52 pm

    The major difference between Minnesota and Indiana is that in Minnesota the vote on the constitutional amendment was in the same election as the vote on members of the legislature. In Indiana, the next vote for legislative seats is in 2016.

    It could work two ways:
    – Defeat the amendment, but the so-called 'short-term memory' of voters would cause people to not remember who voted how this year when they vote in 2016; or

    – There would be two additional years for the pro-GLBT side to get the public more fully on the pro-GLBT side. Even then, it might be a wish and a prayer for the legislature to change hands to the Democrats, as it now consists of (House) 69 Republicans, 31 Democrats and (Senate) 37 Republicans and 13 Democrats.

    (I'm presuming the bill to amend the state constitution passes the legislature this year [hopefully it doesn't], but is defeated by the voters in November 2014, as is now indicated by the current polls.)

  • 55. SoCal_Dave  |  January 17, 2014 at 2:39 pm

    Citing the “requirements of state procurement law,” the state says in its request that it could only hire counsel yesterday.

    But they are not required to hire outside counsel, so it's their own doing. Presumably they knew their own procurement laws and the deadlines when they made this decision.

  • 56. peterplumber  |  January 17, 2014 at 3:26 pm

    Did the plaintifs get married during the open window? That may have bearing on the need for speed.

  • 57. Lymis  |  January 17, 2014 at 3:39 pm

    One pair did. One was already married, and the third stayed single for the duration of the case (so nobody could toss the case out because they are already married and therefore don't have standing to fight the ban).

    Why would that impact the speed issue?

  • 58. Lymis  |  January 17, 2014 at 3:40 pm

    I thought the state issued an extension on submissions by potential counsel. I thought at the time that was really remarkable given how close it put them to the deadline. Sure, once they issued the extension, they may have been constrained by it, but so what? They didn't have to hire outside counsel in the first place, and the state asked for the expedited schedule on this. Bit late to announce they aren't ready.

  • 59. Jim  |  January 17, 2014 at 3:04 pm

    When Utah initially issued a request for proposal for outside counsel, it set a deadline of Jan. 7 for those proposals. Utah later changed the deadline to Jan. 14; it said (see following link): "With the purpose of increasing competition the deadline for proposals has been extended 1 week."

    Today's filing ( explained things this way: "Due to requirements of State procurement law and the desire to obtain the most qualified representation possible to aid the Court in its consideration of the case, outside counsel was only selected on January 16, 2014."

    I don't see how "requirements of State procurement law" required Utah to delay its RFP to Jan. 14 from Jan. 7; that was Utah's choice, but not a requirement of its procurement law. The law is shown below:

    Utah's law on "Attorney General's Selection of Outside Counsel, Expert Witnesses and Other Litigation Support Services. As in effect on January 1, 2014":

  • 60. sfbob  |  January 17, 2014 at 3:12 pm

    I assume the state had to extend its RFP because nobody had responded in time, or at least nobody even THEY would consider hiring. The state's choice of outside counsel has been widely discussed elsewhere on this site. Reading the descriptions they seem to consist of local versions of the illustrious outside counsel hired by BLAG. So we can expect the state's appeal to be based on repeating the same old discredited arguments, though perhaps in a louder voice.

  • 61. Mike in Baltimore  |  January 19, 2014 at 11:10 am

    Speaking from my experience in Federal Contracting (never in any state's contracting), the office requesting a contracting action usually has some party or parties in mind, and is (or has been) in contact with that party (or parties) to have them submit a proposal by the deadline.

    To alter the Federal Procurement Regulation's rather rigid time frames (advertising; submission of proposals; award; etc.), the Contracting Officer writes a justification for such alteration, submits it to the Office of General Counsel (or legal office, whatever the name), who either approves it or doesn't. If approved, the justification is submitted to the Head of the Agency. If he/she signs the justification, the time frames are altered.

    Time frames can be contracted (if needed by the Agency because of emergency, etc.) or extended (if the Request for Proposals, Invitation for Bids, etc., is exceptionally complicated; no one has been identified to date; protests; etc.).

    Before I retired, I was involved in both types of time frame change, due to emergency (contraction), and/or extensions due to protests to the contracting action (I was involved in 'defeating' all protests to the agency's contracting actions during the time I was in that office) or other reason to extend the due date.

  • 62. Lymis  |  January 17, 2014 at 3:42 pm

    Why don't they just plagiarize the briefs used in all the other cases? It's not like they'll have anything new to present.

  • 63. Dr. Z  |  January 17, 2014 at 8:58 pm

    Can't quite agree – the one consistent thing about the 'phobes arguments has been their novelty. Like a petty crook caught in a lie by the cops, they've invented one new justification after another about why the voters "really" passed these DOMA laws. In fact I recall these shifting justifications being called out by Judge Walker in the Perry ruling. And we've had many new approaches since then, e.g. the state's interest in "diversity" in parenting being one of the latest.

  • 64. Lymis  |  January 18, 2014 at 5:17 am

    Does that actually apply on appeal? "Gosh, your honors, what we meant to say the central purpose of the law was, and just forgot, was….."

  • 65. Dr. Z  |  January 18, 2014 at 6:58 am

    So far Utah has offered THREE different justifications in this case. First it was "responsible procreation" and that was a loser in the district court. Then during the stay request to the 10th Circuit it was the Regnerus study and optimal parenting, and you can see where that got them. By the time the stay got to SCOTUS, responsible procreation was out; "diversity" (read: male-female) parenting was in.

    In the Prop 8 case, the campaign ads were all about how little Susie was going to be taught in kindergarten that scissoring didn't mean cutting construction paper. Then when the case got to the courtroom the argument shifted to the-voters-have-spoken, gay-marriage-leads-to-straight-divorce and the "deinstitutionalization" of marriage. (Haven't heard that last one for a while.) Walker noted in his opinion that, when determining whether animus is involved, the courts have considered whether a consistent argument has been made against the suspect group or if there have been several shifting rationales – the latter being a strong indicator that animus was a factor.

  • 66. Rick O.  |  January 18, 2014 at 7:38 am

    DIVERSITY??? My head is spinning. A modern Orwell needs to track this "reasoning". Could be entitled "Animus Farm".

  • 67. Rick O.  |  January 17, 2014 at 3:58 pm

    Indeed it would be fascinating if Utah does come up with a new argument, but I don't think I've heard a new one in quite a few years. Cut and paste and a rhetorical polishing may be all that is possible if moral disapproval is finally dead for legal purpose. When does Mr. Regnerus get to explain himself in court? – I hope before late March

  • 68. grod  |  January 17, 2014 at 5:40 pm

    Utah's reply brief [Jan 6] lays out the argument for the State's claim IMO as prepared by MN Stewart and CG Taylor of Boise, Idaho. What happened to them?

  • 69. grod  |  January 20, 2014 at 2:03 pm

    MN Stewart is list among the State designated attorney in the request for the 10 day extension. The Jan 6 reference above is the Reply Brief to the US Supremes – just prior to the 'stay' being granted..

  • 70. Jim  |  January 17, 2014 at 5:41 pm story weighing marriage-equality prospects at the "moderate" 10th Circuit:

  • 71. Matt  |  January 17, 2014 at 7:02 pm

    They just brought on a new legal team and already they're milking the clock for as much in legal fees as they can get. Just like lawyers…

  • 72. sfbob  |  January 17, 2014 at 9:42 pm

    In all fairness to the state's outside counsel, they've agreed to cap their fees at $300k. Not chump change by a long shot, but the state authorized up to $2,000,000. I have no idea why the hired guns agreed to that; I assume it's because they're "true believers" and view anything over and above as contributions to the cause. Alternately, since they're LDS maybe they're viewing this as some in-lieu-of-tithing thing (I have no idea but it's at least possible). This doesn't guarantee success and if anything I suspect that any devotion they have to the cause will tend to make them overconfident as to the worthiness of their arguments. That might well turn out to be good for our side.

  • 73. MmM  |  January 17, 2014 at 11:24 pm

    the 300K cap is for the 10th circuit appeal only and everyone knows that it is not the final destination. It could be 1.7M for the SCOTUS appeal.

  • 74. Sagesse  |  January 18, 2014 at 4:46 am

    It gets worse. Deseret News reports:

    "The Sutherland Institute, a conservative public policy think tank in Salt Lake City, was heavily involved in the decision. Executive director Paul Mero offered to foot the bill for the "right counsel and the right strategy."

    After the hiring, Mero said Schaerr is "our guy."

    "He meets the criteria that Sutherland Institute has been insisting on. I think he has the capability to provide a deep, rich, meaningful case before the 10th Circuit, and a winning case," he said.

    Schaerr will cap his fees to the state at $200,000 for the appeal, according to the attorney general's office. But Sutherland sweetened the deal by making him a paid fellow at the institute."

    The Sutherland Institute is described in press reports as 'a conservative public policy think tank in Salt Lake City'. The message the state government is sending is amazing.
    "Our legal defense is being run by the LDS Church". Think about it.

  • 75. sfbob  |  January 18, 2014 at 7:18 am

    That's pretty damned creepy.

  • 76. StraightDave  |  January 18, 2014 at 10:31 am

    The church seems to run the rest of the state gov't, so why not.

  • 77. Sagesse  |  January 18, 2014 at 1:12 pm

    And everyone knows it. But this is just so… obvious. Are they going to walk into court wearing BYU sweatshirts? Sutherland Institute ties? puppet strings, perhaps? It also says that they couldn't find an unaffiliated member of the Supreme Court bar who was acceptable to the Mormons who run the state.

  • 78. Steve  |  January 18, 2014 at 4:09 pm

    The legislature too. There are examples of laws that were controversial, then the cult gave it's ok and suddenly everyone voted yes. I think the legislature also has some sort of annual "consultation" with the cult.

    Utah is a theocracy through and through. Nothing happens there without the approval of the cult.

  • 79. Fr. Bill  |  January 18, 2014 at 4:14 pm

    This is beyond belief – the lines between church, State, and this probably tax-deductible and tax-exempt Institute all swirl together.So who is responsible for running this litigation – the citizens of Utah whom the State represents,the unknown people paying the funds that will go to the attorney for writing papers and seminars, the powers that be that run this Institute? It is hard to believe that this situation could happen in a Federal Courthouse.

  • 80. Sagesse  |  January 18, 2014 at 5:52 pm

    We all know the Mormon Church knows the meaning of the term 'back room'. So why are they doing this in the SLC press?

  • 81. sfbob  |  January 18, 2014 at 7:18 am

    That's on the assumption SCOTUS ultimately grants cert.

  • 82. Fr. Bill  |  January 17, 2014 at 7:23 pm

    The 10th Circuit denied the stay and put it on a very expedited briefing schedule – perhaps a balancing of the burden a stay would have on people wanting to get married and a recognition of the State's interest in quick resolution. SCOTUS granted the stay noting the expedited briefing schedule in their order. The plaintiffs have done nothing to warrant changing the balance of interests both Courts seem to have taken notice of. The disarray of the Utah state government is not caused by the plaintiffs. In the long run, it may not matter, but it would be satisfying to see the responsible party have their feet held to the fire.

  • 83. Sagesse  |  January 18, 2014 at 4:25 am

    It would be fantastic if the 10th Circuit refused the extension… especially since the effect of allowing it would probably be to delay arguments until May. However, out of professional (legal) courtesy, I expect they will agree to extend the deadlines in some way.

  • 84. StraightDave  |  January 18, 2014 at 12:46 pm

    If I were the 10th, I would grant UT a 1 day extension, then give the plaintiffs 1 extra day to respond, then take those 2 days out the state's reply time – thus keeping to the original schedule. If their lawyers are any good, they ought to be able to write buckets in those 24 hours. If they can't, then they probably ran out of words anyway.

  • 85. Zack12  |  January 18, 2014 at 4:37 am
    This is one of the dumbest articles I've read in a long time.
    Fiona needs to open up a history book and realize that if certain things were left to the states,we'd still have slavery,jim crows law,women not being able to vote etc.
    Using her logic,LGBT couples in the Midwest and South will be waiting a heck of a long time for equal rights.

  • 86. Richard Weatherwax  |  January 18, 2014 at 10:18 am

    Be careful what you say about women's right to vote. When the issue came to the Supreme Court, despite the wording of the 14th amendment, the Court voted against women. It was the states which began giving women the vote, eventually resulting in a constitutional amendment.

    Fortunately, our system of government allows more than one way to correct a wrong. If one avenue of justice fails, the other may succeed. All avenues should be attempted.

  • 87. Rick O.  |  January 18, 2014 at 7:27 am

    I posted this under a diff. article, but here it is again: Colorado AG's office has not started to write a brief in support of Utah, and though I couldn't get a definite answer out of the "communications director", I get the distinct impression they do not intend to do so. (CO has const. marriage ban, but civil unions, Gov. is "D", AG is "R")

  • 88. Marriage Equality Round-U&hellip  |  January 18, 2014 at 7:51 am

    […] USA, Utah: State officials are asking for a ten day extension to file their briefs in the marriage equality case at the Tenth Circuit. full story […]

  • 89. Sagesse  |  January 18, 2014 at 9:33 am

    We are also reminded that Utah is the home of Sundance.

    Sundance: 50 Gay Marriage Lawyers to Attend Prop 8 Documentary Premiere

    "Case Against 8, making its worldwide premiere in competition on Saturday before airing on HBO in June, is an intimate behind-the-scenes chronicle of Boies and Olson's landmark legal fight to overturn California's Proposition 8 banning gay marriage. They've since reteamed to challenge the constitutionality of Virginia's ban on same-sex marriage, and are arriving in Utah only days after the U.S. Supreme Court stayed a federal court ruling allowing gay unions in Utah (they are not involved with the Utah case)."

  • 90. Utah State Officials Want&hellip  |  January 19, 2014 at 2:40 pm

    […] Utah state officials are asking the Tenth Circuit Court of Appeals for a ten day extension to file the opening brief of their appeal in the same-sex marriage case, Kitchen v. Herbert, Equality on Trial reports: […]

  • 91. Utah State Officials Want&hellip  |  January 19, 2014 at 6:13 pm

    […] Utah state officials are asking the Tenth Circuit Court of Appeals for a ten day extension to file the opening brief of their appeal in the same-sex marriage case, Kitchen v. Herbert, Equality on Trial reports: […]

  • 92. Utah State Officials Want&hellip  |  January 19, 2014 at 10:39 pm

    […] Utah state officials are asking the Tenth Circuit Court of Appeals for a ten day extension to file the opening brief of their appeal in the same-sex marriage case, Kitchen v. Herbert, Equality on Trial reports: […]

  • 93. Equality On TrialUtah off&hellip  |  February 27, 2014 at 11:39 am

    […] state had already asked for, and received, one extension, to file their opening brief. This was in spite of the Tenth […]

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