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Tenth Circuit denies intervention sought by three same-sex couples in Utah appeal

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UPDATE 11:15AM ET: Utah has filed its opening brief in the case at the Tenth Circuit. EqualityOnTrial will have a full post on the brief later but for now, you can read it here.

The Tenth Circuit has denied a motion to intervene in Kitchen v. Herbert filed by three same-sex couples in Utah. The couples are represented by attorney Roberta Kaplan, who successfully argued for Edith Windsor in United States v. Windsor, against Section 3 of the federal Defense of Marriage Act (DOMA).

The three couples wanted to add additional briefing and arguments in the challenge because although the district court’s order struck down Utah’s ban entirely, “neither Judge Shelby’s decision nor the briefing below addressed other prohibitions in Utah’s constitution and statutes which blatantly discriminate against gay and lesbian couples by denying legal recognition in any form whatsoever to gay couples. These provisions expressly bar the provision of any legal rights, responsibilities, or protections to the members of any gay or lesbian couple (including the Proposed Intervenor Couples) at any time, in any place, or of any scope.”

Filing the request at this late stage is unusual, and the brief itself notes that it’s “relatively rare” that a court would grant such a request.

Kaplan notes that she’s representing the couples pro bono and that, “[i]f this Court denies the Proposed Intervenor Couples’ request for permissive intervention, the Proposed Intervenor Couples intend to file their proposed intervenor brief as a brief amicus curiae, to which the parties have consented, and to petition the Court for leave to participate in oral argument as amicus curiae.”

Since the request to intervene was denied, a new friend-of-the-court brief raising these arguments can be expected.

Kitchen v. Herbert will be argued at the Tenth Circuit Court of Appeals on April 10.

Thanks to Kathleen Perrin for these filings

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


  • 1. grod  |  February 4, 2014 at 8:16 am

    Kaplan still intends to file an amicus brief. She apparently did not have the support of either side.

  • 2. Seth From Maryland  |  February 4, 2014 at 8:27 am

    heres a live feed of the scotish parliment debating marriage equality, it going to pass, wrecking amds have already been defeated by a large number of votes,

  • 3. B&E  |  February 4, 2014 at 9:15 am

    I went thru the brief. From my understanding, they rehash the same old arguments. Gays are icky, we must protect children from being raised by them, (see Regenerus study), and Utah's "religious freedoms" need to be protected from US Constitution in cases regarding Civil Rights. Did anyone else understand it this way?

  • 4. bayareajohn  |  February 4, 2014 at 10:49 am

    Gays ARE raising kids without SSM. How can -any- fool think it will help these kids by refusing to legitimize their parent's relationship? The stigmatization (entirely due to ignorantly perceived ickyness) itself perpetuates any suffering that kids of these couples endure. Where Regnerous is quoted, we need to USE IT (properly!) to show that unstable households have more troubled children. Thus it is in the state's interest to SUPPORT AND STABILIZE same sex couples with children by allowing marriage and all the support systems that it triggers.

    This comes up so damn often, and the response is too often muffled or weak. This is so clearly a hammerhead opportunity for a formulated high-impact response that can be used every time "save the children" comes up. "We agree, the children are at risk because the state is crippling and stigmatizing the family!"

  • 5. Zack12  |  February 4, 2014 at 10:56 am

    They have the same theory on single parents. In their word, only a family with a mom and dad works, everything else is inferior.

  • 6. bayareajohn  |  February 4, 2014 at 11:51 am

    And they'll do whatever it takes to make them inferior!

  • 7. davep  |  February 4, 2014 at 10:33 am

    SCOTLAND PASSES MARRIAGE EQUALITY 105 to 18 !!!!!!!!!!!!!!!!!!!!!

  • 8. Craig Nelson  |  February 4, 2014 at 10:37 am

    What a majority! A big moment.

  • 9. Seth From Maryland  |  February 4, 2014 at 10:34 am

    Breaking News: the Scotish marriage equality bill has passed

  • 10. palerobber  |  February 4, 2014 at 4:05 pm

    there's a section of the state's brief called:
    "Other Utah laws encouraging mother-father parenting"

    here's a list of all of the examples given in that section and a YES/NO as to whether it *actually* prefers "mother-father" parenting over same-sex parenting….

    1. state offers marital counseling to those applying for licenses (NO)
    2. Child and Family Services (CFS) recognizes it's ideal for child to be raised by parents as opposed to the state (NO)
    3. CFS to protect integrity of family unit (NO)
    4. CFS to help maintaining parent-child relationship (NO)
    5. CFS to prefer in-home services (NO)
    6. CFS to avoid removing child from their home (NO)
    7. Juvenile Courts (JC) to preserve and strengthen family ties (NO)
    8. JC recognizes it's ideal for child to be raised by parents (NO)
    9. JC to favor preserving familial bonds (NO)
    10. adoption illegal for singles and cohabitating couples (NO)
    11. adoption preference for wards of the state is for married "man and a woman" (YES)

  • 11. palerobber  |  February 4, 2014 at 4:35 pm

    another deceptive thing about that section of the state's brief is that it repeatedly quotes language from state law refering to "natural parents" which a reader might assume means "biological parents."

    but if you actually look up the Definitions section for each of those acts that the brief cites, "natural parent" is defined as "biological or **adoptive** parent."

    see Utah Code 62A-4a-101 and 78A-6-105.

  • 12. grod  |  February 4, 2014 at 6:51 pm

    Thanks for point that out. G

  • 13. palerobber  |  February 4, 2014 at 4:56 pm

    from the brief, here are the state's three compelling interests:

    "maintaining the man-woman definition helps prevent further erosion of the traditional concept of marriage as being principally a child-centered institution"

    "maintaining the man-woman definition increases the likelihood that children will be raised by their biological mothers and fathers […] in intact families"

    "maintaining the man-woman definition helps to ensure adequate reproduction by parents willing and able to raise their children in stable homes"


    to me, all 3 are just variations of that same old absurd and unsupportable claim:
    if we don't ban gay marriage, straights might stop getting married and having kids.

  • 14. StraightDave  |  February 4, 2014 at 5:13 pm

    Yep, spot on!
    Plus, straights will still get married but stop having kids (aka LDS donors),
    or straights will stop getting married but still have kids.

    Oh, and the sky will fall. Boy, marriage has sure become one disastrous activity.

  • 15. JustMe  |  February 5, 2014 at 3:53 am

    Your problem is that this is not subject to heightened scrutiny just mere rational basis scrutiny… thus the interests dont have to be compelling, just legitimate interests, as the brief points out.

    Remember, we are here on summary judgment, so any error will cause reversal and remand.

  • 16. palerobber  |  February 5, 2014 at 10:46 am

    first, it was the state, not me, who classified these interests as "compelling."

    second, the question of whether these interests rise to the level of "compelling" will ultimately not matter since the ban on same sex marriage isn't rationally related to these interests anyway.

  • 17. grod  |  February 4, 2014 at 7:43 pm

    Can someone parse Utah's arguments – which I would characterize as a State's right analysis – against the individual citizens fundamental rights' analysis.

  • 18. StraightDave  |  February 4, 2014 at 9:44 pm

    That sounds about right, but that approach is DOA in the federal courts. The point of the US Constitution, especially many of its amendments, is to protect individual rights from denial by the states. That's the way it works. Hence, Kennedy's "subject to Constitutional guarantees" in WIndsor.

  • 19. sfbob  |  February 4, 2014 at 10:29 pm

    It's essentially an absolutist interpretation of the Tenth Amendment. The Tenth Amendment is in fact subject to all sorts of limitations; were it not, Virginia and other states would still be free to ban interracial marriages and Loving vs Virginia would never have been decided.

    The other arguments boil down to definitions of the purpose of marriage, starting with the whole "from time immemorial" to " it's all about having children" to "children should be raised in the 'perfect' environment." The problem for Utah is that all of their arguments have already been rebutted in various federal courts, including the Supreme Court. Above, palerobber has already cited counterclaims to the state's arguments, based on the state's own laws.

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