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Utah marriage recognition case moves to federal court

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Last week, the ACLU of Utah and national ACLU filed a lawsuit in state court under the name Utah v. Evans seeking a court order that would require Utah to recognize the marriages entered into by same-sex couples when between a federal judge’s pro-marriage equality ruling in December and a Supreme Court order staying that decision’s effect a few weeks later.  Now, the Salt Lake Tribune reports, that challenge is being moved from state to federal court:

The Utah Attorney General’s Office filed a notice on Tuesday, moving the case from the 3rd District Court in West Jordan to the U.S. District Court for Utah. The case has been assigned to Judge Dale A. Kimball.

The couples allege that the state’s decision to place a hold on the marriages while it appeals Shelby’s ruling has created a “legal limbo” that prevents them from pursuing critical protections for themselves and their families.

In the ACLU lawsuit, the plaintiffs want the court to declare valid any marriages that took place between Dec. 20 and Jan. 6, when the U.S. Supreme Court stayed the decision, even if Amendment 3 is eventually found to be constitutional.

The move to federal court came after the state attorney general’s office argued the suit makes claims of civil rights violations which would be better addressed in federal rather than state court.

As Scottie reported yesterday, the hearing for the Utah marriage equality case itself is now scheduled for April 10 at the Tenth Circuit Court of Appeals in Denver, followed by another hearing for a similar case out of Oklahoma on April 17.  We’re in the midst of fundraising in order to travel to those hearings this spring–we’ve made it over the 50% mark towards our $10,000 goal, but we could still use your help to try to reach our goal!

Now that we’ve raised $5,000, we can fund the site through the summer. If we raise $6,000–and we’re not far from that!–we can cover all our expenses to travel to Denver and cover the appeal of the Utah decision. If we raise $8,000, we can stay longer in Denver to cover the Oklahoma hearing as well. And if we make our goal of $10,000, we’ll be fully funded for all of 2014.

We can only keep the site running if our readers make it happen.  Please chip in whatever you can!


  • 1. RAJ  |  January 30, 2014 at 12:27 pm

    Okay, here are some of the first indications of how Utah's newly hired counsel want to proceed. (they want an extra 10,000 words):

    Utah asks court to permit lengthier 'brief' in same-sex marriage appeal

    “This appeal presents one of the most important and debated legal and policy questions of our time: the constitutionality of a state’s decision to define marriage as only the union of a man and a woman.”

    Gene Schaerr, special assistant Utah attorney general

  • 2. RAJ  |  January 30, 2014 at 12:35 pm

    . . . and, they want to "cite vast amounts of social science material to fully and fairly explain how traditional marriage serves Utah's interests."

    I know from the DAY the Regnerus study was released, LDS sources leapt to cite it, so I wouldn't be surprised to see it appear here, plus other similar work.

  • 3. StraightDave  |  January 30, 2014 at 2:07 pm

    Gee, I thought that was already agreed on, …"how traditional marriage serves Utah's interests." As far as I know, traditional marriage is still fully available to anyone who wants to voluntarily participate in it. Seems like nothing to argue there.

    When they want to argue about how the restriction on SS marriage serves Utah's interest, especially its children, then I might listen.

    Have they not been paying attention outside their cocoon the last 2 years?

  • 4. davep  |  January 30, 2014 at 7:08 pm

    Bingo. It does not matter one bit how wonderful civil marriage is for opposite sex couples. Denying it to same sex couples does nothing to assure or advance any of that. There is no rational connection between this argument and what the law actually does.

  • 5. Dr. Z  |  January 30, 2014 at 9:39 pm

    What difference does it make if they measure the quality of their argument in pounds of paper. Research on child rearing, while it might be pertinent to family law, has zero relevance to marriage law.

  • 6. Deeelaaach  |  January 31, 2014 at 1:40 am

    They certainly have been paying attention outside their cocoon. But they keep trying the same thing over and over with the expectation of a different result. Wait, that's a definition of insanity…

  • 7. Lymis  |  January 31, 2014 at 7:04 am

    Seriously, this is like explaining at length why modern medicine and medical training and certification is so important to the health and welfare of a state's citizens in a case about why you want to ban black people from practicing medicine.

    Nobody's disputing the value of straight marriage – not even the people pointing out things like the fact that straight people aren't required to be fertile to be eligible, or that there are non-religious straight civil marriages and religiously blessed gay ones.

  • 8. sfbob  |  January 31, 2014 at 8:55 am

    You begin to get the feeling that they're simply playing out the clock. Since there are no pertinent or rational arguments against marriage equality they are going to regurgitate every single one of the discredited and irrelevant ones, perhaps thinking they can bore the judges into a stupor and gaining their agreement that way.

  • 9. Lymis  |  January 31, 2014 at 10:41 am

    Lately, I think it's more a matter of "Well, we tried. Don't vote us out of office."

  • 10. StraightDave  |  January 31, 2014 at 11:21 am

    They're just being good-LDS-doobies so they can make it to Kolob in 1 piece.

  • 11. sfbob  |  January 30, 2014 at 1:29 pm

    The biggest surprise about that entire article, given the source, is that the no quotation marks were used in the caption to the photo beneath the headline.

  • 12. grod  |  January 31, 2014 at 5:28 am

    Is Utah's AG acknowledging that the supremacy of federal law on the right to remain married and recognized in the state of residency? A particularly interesting question when the state where the valid marriage was performed is the couple's own state. Is the AG agreeing with Scalia that the effect of Windsor is that no state can refuse to recognize a valid marriage?. In the 10 Circuit Appeals Court, is not the AG arguing that the definition of marriage is a 'power' /prerogative of individual states.

  • 13. grod  |  February 2, 2014 at 7:13 am

    With Roberta Kaplan, on behalf on two December 2013 married couples and a non-married couple of 30 years seeking to participate in the 10 Circuit Appeals case Kitchen v Herbert, the question of recognition of valid in-state marriages would be enjoined. Lets hope Kaplan gets her request. If so, it would be another setback for the State who is opposing the motion.

  • 14. grod  |  March 12, 2014 at 2:59 pm

    Judge D Kimball this morning hear Evans v Utah.
    This is an especially interesting and disquieting case, unique because the state of celebration and the state granting [or not] recognition is the same. To get a grip of the plight of the 1365 couples here the link of the last of the plaintiff's reply before the 2 hour hearing:… Pissed?! Do recall some Americans have a heart. At least 8 equality states said they would recognize these marriages.
    You be the judge of the level of affront to the right to remain married and recognized this case presents and the significance of Kennedy's conditional clause: subject to certain constitutional guarantees. (Windsor)
    For those who want to review the earlier submissions go to

  • 15. grod  |  March 12, 2014 at 4:20 pm

    Once a legal marriage occurs, the Constitution prohibits taking away the vested rights connected to that relationship: “there is a sphere of privacy or autonomy surrounding an existing marital relationship into which the State may not lightly intrude”. “The relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection.(Windsor); divesting “married same-sex couples of the duties and responsibilities that are an essential part of married life” violates due process. p 17

  • 16. grod  |  March 12, 2014 at 6:32 pm

    Salt Lake Tribune's report on the March 12 hearing before Judge D. Kimball –

  • 17. RAJ  |  January 31, 2014 at 5:45 am

    Two more items out of Utah:

    "A lesbian couple has filed a lawsuit against Utah, asking the state to recognize their marriage and all the accompanying rights to which they believe they are entitled."

    They're twice married, once in 2010 in New England, again during Utah's brief ME window, their baby is due any day now.


    Attorney general briefs House GOP caucus on Amendment 3 case

    Apparently some other bills were going to be heard this session (religious freedom, etc…) but now those will probably be on hold while the 10 circuit appeal goes forward.

    "… rank-and-file Republican representatives walked away feeling that marriage related bills won't be heard this session because any comments seen as animus or hostile could be used against the state in court."

  • 18. Zack12  |  January 31, 2014 at 6:45 am

    In regards to number 2,too little too late for that.
    Their statements are already on record when they helped draft the ban that went to the voters.

  • 19. RAJ  |  January 31, 2014 at 6:55 am

    Absolutely, their animus is already on record — plus, the second part of Amendment 3 (the part that also bans civil unions) makes it clear that in 2004 when they had the political and electoral muscle, they were willing to shut same-sex couples out of ANY protections. Now, Utah polls indicate there is a majority of people for civil unions, but there that second clause sits, making even that impossible.

  • 20. Lymis  |  January 31, 2014 at 6:59 am

    At this point, trying to shove the animus genie back into the bottle will be nearly impossible.

  • 21. RAJ  |  January 31, 2014 at 7:05 am

    yep — I just have to chuckle at the thought of the new counsel sitting at the Attorney General's elbow in the meeting saying something to the effect of — "muzzle these people. The less they say, the better. Outsiders are watching us now and I don't want someone shooting their mouth off making my job any harder than it already is."

  • 22. StraightDave  |  January 31, 2014 at 7:29 am

    I actually totally believe that! A good lawyer would do exactly that. Is there a tape somewhere, just waiting to be found?

  • 23. StraightDave  |  January 31, 2014 at 7:21 am

    Agreed. They were plenty willing to flaunt their animus when they thought nobody cared. Now that it's quickly becoming taboo, they trying to pretend it never happened.

    (btw- my personal metaphor is trying to shove a snake back into the bottle. The origins of this(in my mind, anyway), are that a genie is supposed to be something that is viewed as good and beneficial, which later turns out to have nasty side effects – e.g., pesticides and nuclear power. Once you have them, you can't uninvent them. On the other hand, a snake is always viewed as evil, and was intended to harm someone else. These guys pull out their pet rattlesnakes to go after people, but the snakes then turn on their masters who look helpless trying to stuff them back in. I do enjoy watching this. Does that make me a bad person?

  • 24. Lymis  |  January 31, 2014 at 10:43 am

    I think the metaphor works either way – THEY certainly thought their animus was a good thing at the time.

  • 25. StraightDave  |  January 31, 2014 at 11:13 am

    I'm not so sure about that. Animus means dislike and hostility. I will concede that there were likely plenty of people who were simply poorly informed/brainwashed/ignorant who may have thought they were saving the world. But there were surely a hell of a lot who didn't care about any such goodness and were just plain mean-spirited.

    Consider the resistance to the civil rights movement of the 60's. Was that driven by animus or well-intentioned ignorance?

  • 26. Eric  |  January 31, 2014 at 11:40 am

    Ignorance is not an excuse, the information is freely available, it is animus.

  • 27. Sagesse  |  February 1, 2014 at 7:41 am


    We can't say mean things about LGBT people. That's animus. We don't hate LGBT people. We love LGBT people. But sometimes we need to say mean things. Because.

    So we won't say mean things until the courts uphold our constitutional amendment. Because it's not hateful, or mean, or animus. Then we can say mean things again.

    Wait. The things we say are mean?

  • 28. Richard Weatherwax  |  February 1, 2014 at 11:27 am

    To paraphrase Tallulah Bankhead from the movie "Lifeboat": Some of my best friends are LGBT.

  • 29. RAJ  |  January 31, 2014 at 7:44 am

    Just one more item, then I head to work:

    Sutherland Institute admits errors in ad opposing nondiscrimination bill

    This has to do with a state ENDA-type bill. A great, magnanimous show of pulling an ad when an inaccuracy was pointed out. If one of the article commenters is to be believed, Paul Mero (Sutherland's leader) is on record with a Twitter boast saying he didn't care if the ad was inaccurate, as long as it was effective.

    Anyway, more good advice from counsel if you want to appear fair. I guess I'm cynical (I lived through prop 8) but I think we can expect more HIGHLY visible displays of excruciating fairness to underscore how NOT bigoted Utahns are.

  • 30. StraightDave  |  January 31, 2014 at 11:18 am

    The people of UT are not on trial. Their laws are. They can PR-stunt all they like. The court in Denver isn't watching their TV or reading their newspapers. This isn't a political campaign. But when did these folks ever grab the right end of the stick? I think these moves just look cheap, slimy, and guilty.

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