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Utah officials seek 7-day extension to file reply brief in marriage equality appeal

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UPDATE: 2:36PM ET: The request for a one-week extension has been granted. The brief will now be filed March 11, instead of March 4. This shouldn’t affect arguments in April, one month from the filing of the last brief.

The state defendants in Kitchen v. Herbert, the Tenth Circuit appeal challenging Utah’s same-sex marriage ban, are asking the appeals court for more time to file their reply brief in the case. The request is for “an additional 7 days to file their reply brief, and permission to use up to an additional 5,000 words in that brief.” The filing notes that the plaintiffs, same-sex couples challenging the ban, “do not oppose either request.”

The state argues that its lawyers “cannot reasonably review Plaintiffs’ arguments and the legal and other sources cited in support thereof, and draft an appropriately substantive reply within the currently allotted 7 days” because the plaintiffs’ brief contains almost 24,000 words, and the state wants to respond to the friend-of-the-court briefs filed in favor of the plaintiffs as well. (The latter is typical in a reply brief.)

The state had already asked for, and received, one extension, to file their opening brief. This was in spite of the Tenth Circuit’s previous order stating that requests for extensions of time “are very strongly discouraged, and will be considered only under extraordinary circumstances.” In that instance, the state asked for ten extra days, but were only granted seven.

The state’s filing suggests that even a new time extension at this point won’t affect the Tenth Circuit’s ability to hear oral arguments, which are scheduled for April 10.

The Tenth Circuit has previously denied a request filed by Edith Windsor’s attorney, Roberta Kaplan, on behalf of three same-sex couples, to intervene in the challenge to raise issues not expanded upon by the plaintiffs.

The Tenth Circuit could act on the request at any time.

Thanks to Kathleen Perrin for this filing

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


  • 1. karls  |  February 27, 2014 at 10:19 am

    They need time to make up some more lies…

  • 2. Steve  |  February 27, 2014 at 10:50 am

    If I were the judge, I'd deny the request. They don't even have any new lies. It's always the same nonsense.

  • 3. davep  |  February 27, 2014 at 10:50 am

    I'm picturing the state's lawyers, standing around the desk in a semicircle, staring down at a copy of the plaintiff's brief on the desk: "Come on, you guys, think! What could we say that could look like a valid reason for the state to deny civil marriage to these couples? We gotta come up with something! Come on, ANYthing! THINK!!!". Tick tock, tick tock.

  • 4. Rick O.  |  February 27, 2014 at 11:07 am

    A judge might be a bit testy. Wasn't it the defense that started the war of 24,000 words back in January? I still have the nagging feeling thay're stalling to see if they can get anything salvageable out of the treatment of expert witnesses in the Michigan trial.

  • 5. grod  |  February 27, 2014 at 11:30 am

    How can we access the amici briefs?

  • 6. Kevin  |  February 27, 2014 at 11:47 am

  • 7. sfbob  |  February 27, 2014 at 2:21 pm

    Seems like you need an account to access filings.

  • 8. Scottie Thomaston  |  February 27, 2014 at 11:48 am

    I think Kathleen Perrin will have the upcoming ones. We'll try to cover at least one or two of them, but you could check the Prop 8 Trial Trackers Facebook group for a full list when they are out on March 4.

  • 9. grod  |  March 4, 2014 at 6:19 pm

    For those who can not wait, 15 AGs 'pro' amicus brief in Kitchen and Bishop

  • 10. RAJ  |  March 4, 2014 at 6:45 pm

    Thanks grod.

  • 11. StraightDave  |  February 27, 2014 at 5:53 pm

    It's like a student having to write a term paper on a topic he hates. Oh, the stalling that will occur!!

    But the longer they wait, the more bad news there is likely to appear. Screwed, just screwed, and they know it.

  • 12. Colleen  |  February 27, 2014 at 6:04 pm

    I kind of wonder if they're stalling to see how the anti-gay "science" is received by the judge in the Michigan case, since that's their only augment that isn't based in religiosity and "tradition". They've not been having much luck in the courts with those.

  • 13. grod  |  March 1, 2014 at 9:10 am

    Public education is an ill-fitting analogy for marriage! The state of Utah's opening brief said ‘That [mother-father] model is not intended to demean other family structures, any more than giving an “A” to some students demeans others’ p 17. In Utah’s analogous model of education, the ‘non A’ students are given no grades: The [school] respects and values those [non-A students] as both equal before the [school authorities] and fully entitled to order their [academic] lives in the manner they have chosen p16. Or perhaps the comparison is a good one because it helps make the point that similarly situated citizens ought to expect equality of access, choice and support as parents expect of the school system dedicated to ‘best interest of children’. In as much as public education is a right of all children, marriage is right of all adults. A key difference not obvious to those who drafted this brief on marriage, is access, choice and supports are vested in individuals/couples and only secondary the state. Utah reads Windsor as supporting the regulation of family relations as solely vested in each state, ignoring Kennedy’s conditional provision “subject to constitutional guarantees.” Perhaps insight has come to the drafters – fundamental rights (i.e liberty, privacy and association) are vested in individuals. Short of withdrawing their demeaning opening brief, perhaps the drafters need time to consider reframing their argument.

  • 14. Marriage Equality Round-U&hellip  |  February 28, 2014 at 7:07 am

    […] USA, Utah: The state is seeking a 7 day extension on filing a reply brief in the marriage equality lawsuit. full story […]

  • 15. JimT  |  March 12, 2014 at 1:56 pm

    Does anybody know if the brief by the State of Utah that was due to be filed March 11 has been uploaded anywhere yet?

  • 16. Ragavendran  |  March 12, 2014 at 2:13 pm

    They got ANOTHER extension (3 days). It is now due March 14. They also requested and obtained permission to file an oversized reply brief (additional 8000 words).

  • 17. Ragavendran  |  March 14, 2014 at 11:28 pm

    PACER reports that Utah has filed their reply brief. Anyone find a copy online? Of course, it's available from PACER, but I'd rather not pay $3.00 to download 120 pages of bs.

  • 18. Lynn E  |  March 15, 2014 at 3:08 am

    I tried to post a link, but it went a new thread. Here is the 3/14 reply from Utah.

  • 19. Lynn E  |  March 15, 2014 at 3:05 am

    It is on scribd.

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