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Tenth Circuit rejects motion to participate in oral arguments by three same-sex couples

LGBT Legal Cases Marriage equality Marriage Equality Trials

Three same-sex couples who had previously filed a request to intervene in Kitchen v. Herbert, the Tenth Circuit appeal of the challenge to Utah’s same-sex marriage ban, recently asked the Tenth Circuit for the opportunity to participate in the oral arguments on April 10.

Their earlier request was filed by Roberta Kaplan, who argued at the Supreme Court on behalf of Edith Windsor that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional. This follow-up request was also filed by Kaplan, who’s representing these couples pro bono.

But the Tenth Circuit has rejected this new request, just as it did the previous one, with no comment.

The couples hoped to introduce new arguments showing that Utah’s constitution and statutes have other provisions that target LGBT people’s relationships:

…neither Judge Shelby’s decision nor the briefing below addressed the prohibitions in Utah’s constitution and statutes that blatantly discriminate against gay and lesbian couples by denying them legal recognition in any form whatsoever. Utah Const. art. I, § 29; Utah Code Ann. § 30-1-4.1(1)(b). These provisions expressly bar the provision of any legal rights, responsibilities, or protections to the members of any gay or lesbian couple (including the Amici Curiae Couples) at any time, in any place, or of any scope.

They had suggested that they agree with the arguments the plaintiffs have made in the case:

However, Plaintiffs-Appellees do not fully explain how the other provisions in Amendment 3 and the Utah statutes constitute separate, independent violations of the Equal Protection Clause by preventing any legal recognition of gay and lesbian relationships. See Utah Code Ann. § 30-1-4.1(1)(b) (“this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married”); Utah Const. art. I, § 29 (“[n]o other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent effect”). The Utah laws at issue here, by preventing any legal recognition of gay and lesbian relationships under any circumstances, have significant practical consequences for the daily lives of gay Utahans.

The couples have filed an amicus brief, which EqualityOnTrial doesn’t have yet.

Thanks to Kathleen Perrin for this filing

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


  • 1. ragefirewolf  |  March 5, 2014 at 12:58 pm

    If they participate in the oral arguments, won't the whole thing just take longer? I think the 10th Circuit has been mostly interested in keeping this whole thing expedited, yes?

  • 2. Seth From Maryland  |  March 5, 2014 at 1:04 pm


    Last week, the ACLU filed a motion seeking an injunction blocking Wisconsin's gay marriage ban during the court challenge. U.S. District Court Judge said on Tuesday that she probably won't block it since it would be immediately challenged, the Wisconsin State Journal reports:

    Crabb“Of course, the premise of a preliminary injunction is that relief is needed now and cannot wait until the case is fully litigated,” Crabb wrote. “If a preliminary injunction must be stayed as soon as it is entered, it is not clear what purpose it serves.”

    Crabb said she'll deny the motion if it isn't withdrawn. She also said "the case will proceed to summary judgment on an expedited schedule.”

  • 3. Bill  |  March 5, 2014 at 1:25 pm

    I thought I was up to date- I did not see Wisconsin coming. My scorecard has us at over 30 states with either full marriage equality- or a fed dist court ruling in favor of SSM by 12.31.14, and +35 by the end of the 2015 SCOTUS term. Take the 17 we have, and add those that are moving fast: OR, NV, ID, CO, UT, OK, WI, AR, MI, TN, KY, VA, WV & PA. I'm betting the rest of the deep south, MO, AZ &OH won't get to rulings by 12.31.14, and for safety sake I'm not counting on the TX appeal.

  • 4. Rick O.  |  March 5, 2014 at 1:50 pm

    CO has two cases, both in state, not federal court, and they are not moving "fast". Too late for starting ballot repeal of ban before 2016, though the idea it would have passed this year has arisen in just the last 2 months. One Colorado and ACLU folks told me Monday they are optimistic 10th Circuit Appeals (hearing April 10, Denver) will uphold Shelby's Salt Lake ruling (and OK, hearing Apr. 17) by end of June.

  • 5. Pat  |  March 5, 2014 at 2:56 pm

    Nice list. Did you by any chance keep track of which cases are further along, and their current (and expected) timeline? Like which are in the briefing stages, which ones have a hearing date set, etc. I've been looking for a nice concise state-by-state graphical timeline.

  • 6. StraightDave  |  March 5, 2014 at 5:25 pm

    Here's my pretty lame scorecard, definitely not complete, but what I've been able to grab the last couple months. Corrections are welcome.

    Mar 11 UT state's reply brief – can't wait
    Mar ?? NV 9th Circuit appeal hearing
    Mar 17 VA Deadline to file appeal
    Mar 17 OK 2nd brief
    Mar 19 KY State's answer to plaintiff's license complaint
    Mar 20 KY End of stay on recognition order
    ** Mar 28 VA State's appeal opening brief ** Proposed
    Apr 1 OK 3rd brief ??
    Apr 7 OK final reply brief
    …to be continued

  • 7. StraightDave  |  March 5, 2014 at 5:26 pm

    Apr 7 VA State's opening brief (4th circuit-Bostic?)
    Apr 10 OH State's opening brief (6th circuit-Obergefell)
    Apr 10 UT 10th Circuit hearing (Kitchen)
    ** Apr 11 VA Plaintiff's response ** Proposed
    Apr 17 OK 10th Circuit hearing (Bishop)
    Apr 18 KY Motion and Memo for Relief by plaintiffs (license)
    Apr 23 OR Geiger trial begins
    ** Apr 30 VA State reply brief ** Proposed
    May 9 VA Plaintiff's response brief (4th)
    May 13 OH Plaintiff's response brief (6th)
    May 19 KY State response
    May 23 VA State's reply brief (4th)
    May 28 KY Plaintiff's reply
    May 30 OH State's reply brief (6th)
    Jun 9 PA Whitehead trial starts

  • 8. Ragavendran  |  March 5, 2014 at 5:56 pm

    Wow, that's an awesome list! How about we create a public Google Calendar or something?

    (Regarding the Nevada case, I doubt the 9th will hear arguments this month or early next month, as its current oral arguments calendar looks full, unless it calls a special session, which is even more dubious. It is a very slow circuit, and even on an expedited schedule, it might take some time. Briefing was completed late last week though, so it should be calendered soon…)

  • 9. Lynn E  |  March 5, 2014 at 6:12 pm

    Impressive list. I agree that an upcoming events calendar that would gather the status and deadlines of the cases would be a great way of displaying news of interest. Now that there are so many cases to follow, it is sometimes hard to find the most recent news on a case.

  • 10. davep  |  March 5, 2014 at 6:46 pm

    Well done, SD!

    Staff at EoT: How about putting a chronological overview list like this at the top of the "CURRENT CASES" page? It would be really informative for all of us, given the quantity of different cases going on right now. Thanks!

  • 11. Pat  |  March 6, 2014 at 2:16 am

    Great list, StraightDave!
    And great idea Ragavendran regarding the Google document.
    I am actually doing just that now! But I will need input on each state's status.
    First question that comes to mind from StraightDave's list: there is "March 17: deadline to file appeal in VA" and then there is already a briefing schedule for that very appeal. If the briefing phase has been all scheduled, then an appeal was already filed, correct? I forgot where it stands.

  • 12. StraightDave  |  March 6, 2014 at 8:49 am

    Good question about the VA appeal. I honestly don't know since I put that item in my before anything happened. I know one defendant (clerk?) has publicly stated they want to appeal, but I agree they must have formally done so in order for there to be a briefing schedule, which both parties are now trying to expedite.

    So I'd say the Mar 17 deadline is probably moot. Good catch.

  • 13. grod  |  March 6, 2014 at 6:52 pm


  • 14. grod  |  March 6, 2014 at 7:49 am

    Thank you Texas Attorney General Greg Abbott said shortly after the Judge O Garcia ruling came down that the state of Texas would be appealing the decision to the 5th Circuit Court of Appeals. No dates yet.

  • 15. StraightDave  |  March 5, 2014 at 5:07 pm

    And you might consider adding the following as potentially being "collateral damage" as a result of circuit court rulings that SCOTUS declines to review:
    AK, MT, AZ, WY, KS, NC, SC, (not counting AR, LA for the same TX safety reasons – no faith here)

  • 16. Zack12  |  March 5, 2014 at 5:21 pm

    I feel the same way. I have no faith whatsoever in the 5th circuit to do the right thing.
    They are in the Scalia and Thomas mode of pulling stuff out of thin air to justify their positions.

  • 17. Bruno71  |  March 5, 2014 at 6:11 pm

    I'd even see the 5th reaching for thin air justifications only to present some sort of controversy to SCOTUS. A sort of "someone's got to take the other position" kind of attitude, even if the rationale is weak sauce.

  • 18. Kevin  |  March 5, 2014 at 9:19 pm

    I agree. However, the tea leaves in Windsor are not at all difficult to read. Scalia's dissent should be read exactly as district court judges are reading it, as telegraphing how the high court will eventually rule. There was even a recent Volokh Conspiracy (a conservative legal blog) article about the potential non-necessity of Supreme Court review in the absence of a circuit split. So, the question for the Fifth Circuit is really, do they want to present the opinion they know will get overturned, which will hasten nation-wide marriage equality, or do they instead want to bite the bullet and wait for the circuits to fall one at a time?

  • 19. StraightDave  |  March 5, 2014 at 10:19 pm

    All else being equal, as TX goes, so goes the 5th. They would prefer to die with their boots on.
    But it's going to be one hell of a struggle to write that un-writeable ruling with a straight face. They'd need a real fire-breather who doesn't give a damn about his legacy.

  • 20. Keith  |  March 6, 2014 at 8:03 am

    “It is far too early to declare the fight over. For starters, few appellate courts have issued post-Windsor same-sex rights decisions yet. A same-sex rights win in district court is much less significant than any win at the appellate level. Plaintiffs (usually same-sex rights proponents) usually have an ability to seek out sympathetic judges at the district court level, but that ability largely disappears at the appellate level.” Andrew Suszek criticizes what he describes as the “strong trend among journalists and judges alike in using the” Court’s decision in United States v. Windsor, striking down a provision of the federal Defense of Marriage Act, “to conclude that state same-sex marriage bans are unconstitutional.”

  • 21. Eric  |  March 6, 2014 at 1:43 pm

    I don't know who Andrew is or why his legal analysis should merit attention, but he appeared to deliberately avoid the Windor caveat that state regulation of marriage is subject to certain constitutional guarantees. The court did not say the states have an unlimited ability to regulate marriage.

  • 22. JayJonson  |  March 6, 2014 at 4:24 pm

    Suszek seems to be a Chicago lawyer. His analysis is unconvincing for the reason you give. Windsor certainly has some federalism nuances, but they are countered by the fact that gay and lesbian couples are entitled to equal protection and due process.

  • 23. StraightDave  |  March 5, 2014 at 8:01 pm

    After this week's Detroit meltdown, we can probably add TN to the list (6th circuit).

  • 24. Warren  |  March 5, 2014 at 3:11 pm

    I have the following states on my scorecard. I wait for the District court's ruling to add the state to my list:. Also, if the 5th Circuit overrules the district court's ruling, I think the SCOTUS may take the TX case to resolve the SSM issue.

    With only 8 states to go to have 50% of all states that either have same gender marriage or in KY case must recognize legally married same sex couples it won't be long to reach to half way point when 50% of all states recognize same sex marriages.

    Since July 2013. CA, NJ, HI NM and IL made SSM legal

    KY, UT, OK, OH, VA, and TX all have favorable rulings for same sex marriages.

    In NV and OR the AG's have said that they won't defend their bans on same sex marriages. In the Abbott Laboratories and GlaxoSmithKline case the 9th Circuit ruled that Gays are a protective class. Most likely, NV and OR will also have a favorable ruling for same sex marriage.

  • 25. Zack12  |  March 5, 2014 at 4:46 pm

    Add Wyoming to the states now facing lawsuits by gay and lesbian couples.

  • 26. Bruno71  |  March 5, 2014 at 6:13 pm

    Wyoming has no constitutional ban, so it could be even easier to overturn their statutes. On the other hand, with the Utah & Oklahoma cases much more advanced, this will probably be moot at some point.

  • 27. Andrew  |  March 5, 2014 at 6:20 pm

    I often here journalists state the Supreme Court will be forced to here this issue sooner now that there are so many courts over-turning bans based on the DOMA ruling. However, the Court usually only takes cases where there is a split in interpretation of the law among the circuits. So far there has not been a single split. The judges are for the most part saying that the Supreme Court has effectively already heard this case last summer and already made its ruling. At least thats what Scalia stated in his dissent. Do any of you also believe that as long as state and district courts all rule the same way, it makes it more certain the Supreme Court will NOT take any appeals on this issue?

  • 28. Bill  |  March 5, 2014 at 6:38 pm

    I agree with your interpretation, and I agree with the notion (above) that a negative outcome in the 5th Circuit is the likeliest opportunity for SCOTUS to agree to hear an appeal.

  • 29. Christian  |  March 5, 2014 at 7:22 pm

    What about the 'Bruning'? If, say, the Ninth ruled in our favor wouldn't that technically create a circuit split? Considering that the Supreme Court hasn't issued any ruling or statement regarding the legal landscape or stare decsis on marriage cases like this, the fifth doesn't necessarily have to rule against us for SCOTUS to accept certiorari.

  • 30. Ragavendran  |  March 5, 2014 at 7:58 pm

    Yes, and I think I've mentioned this elsewhere, but Bruning was 7 years ago, pre-Windsor (which counts as a huge doctrinal development now), and it never reached SCOTUS then. So yes, technically there will be a split, but much less persuasive than if, say, the 5th overturns the De Leon ruling.

  • 31. Kevin  |  March 5, 2014 at 9:28 pm

    SmithKline already presents the Court with a split of circuit authority on the standard of review that applies to gay and lesbian classifications under the Fourteenth Amendment of the US Constitution. So, yes, it could, but it is nevertheless unlikely to do so without more.

  • 32. Mike in Baltimore  |  March 6, 2014 at 10:59 am

    Wasn't there also a split between the First and Second Circuits on standard of review? If I remember correct, SCOTUS ignored that split and didn't rule at all on the issue.

  • 33. Eric  |  March 5, 2014 at 6:59 pm

    Given they issued a stay for no good reason, I wouldn't expect them to not get involved if given the opportunity.

  • 34. Lynn E  |  March 5, 2014 at 8:11 pm

    The request for a stay that was filed with Sotomayor was very different in tone from the requests to Judge Shelby and the 10th Circuit. Since the ruling was issued without benefit of a trial, I suspect this may have been a factor in the granting of a stay. As painful as the stay has been (I was unable to wed during the brief window of Utah Equality), I think the 10th will uphold Judge Shelby's ruling. I don't think the Supreme Court will take the case for fear of moving too fast.

  • 35. Ragavendran  |  March 6, 2014 at 10:36 am

    I agree. The 10th, especially if the same two judges who thrice denied the stay will be part of the panel, will likely uphold Shelby's ruling. They might or might not stay their order though, and if they don't, we know Utah will run crying to Mommy again.

  • 36. Tim  |  March 5, 2014 at 7:58 pm

    Was there a split with DOMA? I didn't think so. And they took it.

  • 37. Andrew  |  March 5, 2014 at 8:22 pm

    The Obama administration said it wouldn't defend it. There was a split in how some citizens were filling out their federal tax returns and filling out their state tax returns. The court had never ruled on it. With the cases now before the lower courts, I don't know how the courts could undo what Kennedy said in his DOMA ruling or pretend that US constitutional rights only apply to people's interaction with the federal government and not with state governments. Kennedy's reasoning made it impossible for any state to uphold their state bans. Gay marriage is now the law in every state. Every judge this past year agrees. Its just that they only have authority to make that claim in their jurisdiction. But no state or district court has the authority to go say the Supreme Court was wrong in its reasoning for DOMA. But then again, the Court has been know to make things up when they can't find the right legal justification to support their beleifs.

  • 38. skrekk  |  March 6, 2014 at 10:10 am

    There would have been a circuit split if SCOTUS had declined to hear Windsor, since DOMA would have been unconstitutional only in the 1st and 2nd circuits.

  • 39. Sagesse  |  March 5, 2014 at 7:31 pm

    Americans United And Allies Ask Federal Appeals Court To Strike Utah’s Same-Sex Marriage Ban [Press Release]

    "Americans United has joined a legal brief asking a federal appeals court to uphold a lower court ruling that struck down Utah’s same-sex marriage ban.

    "The brief, filed by Americans United, the Anti-Defamation League and 23 other religious and public policy groups, says the state’s ban is unconstitutional and argues that it restricts, rather than protects, religious liberty."

    There's a link to the brief in the press release.

  • 40. grod  |  March 5, 2014 at 8:10 pm

    The brief:

  • 41. StraightDave  |  March 5, 2014 at 10:10 pm

    This is a good one!
    It really emphasizes much more than any brief I've seen just how severely the UT ban violates the Establishment Clause. Utah's own actions turn right around and bite themselves in the ass. They pushed the amendment with religious rationale and emphasis (because that sells in UT), and now they're getting called on it.
    And, most richly of all, they're getting called on it by a bunch of other religious organizations.

  • 42. sfbob  |  March 6, 2014 at 10:42 am

    Somehow it tickles me that the brief calls the LDS Church's stance on civil marriage "hypocritical" in light of other statements the Church has made. Because, of course, that's precisely what it is.

  • 43. Pat  |  March 6, 2014 at 3:28 am

    OK, as suggested above by Ragavendran and others, I have made a first draft of a shared Google document to visualize the status and timeline of each state.
    – I have arranged the states by circuits. It makes it a little harder to look for a given state (not alphabetical order) but it shows right away which other states might be affected by an ongoing appeal.
    – I have made a week-by-week calendar for clarity
    – While I follow this site very closely, I didn't keep track of all the schedules and briefing deadlines (and it's unfortunately very hard to search by keywords here), so I have just included the information provided by StraightDave above and added a few that I know of.
    – I suggest we first agree on a layout and correct / complete the table. Then I can probably make it editable by everyone (or better: transmit it to the EqualityOnTrial team, as Davep was suggesting, if they agree to update it and display it on their "current cases" page)
    – Right now, comments can be added in the spreadsheet. All corrections are welcome (or also here in the comments and I'll try to implement all additions suggested).


  • 44. FYoung  |  March 6, 2014 at 3:52 am

    Thanks for doing this, Pat!

  • 45. montezuma58  |  March 6, 2014 at 4:36 am

    Nice work. There is also this case in AL
    It was filed in 12/2013 so I wouldn't expect much happening until the fall

  • 46. Pat  |  March 6, 2014 at 4:47 am

    In particular, I have been using the map at to indicate states where a case has been filed (see all states with "Lawsuit filed" indicated in my file).
    What I don't know (and where I need your help) is which of these states already have a briefing schedule or trial date set. I'm sure some of them are already further along than merely filing paperwork.

  • 47. SoCal_Dave  |  March 6, 2014 at 6:09 am

    Great job, Pat. Thank you!

  • 48. Straight Ally #3008  |  March 6, 2014 at 6:21 am

    I concur with Dave! That Google doc fulfills my tendency to obsess over details. 😉

  • 49. Rose  |  March 6, 2014 at 8:02 am

    Thanks Pat……I shared it with friends I know from topix's through pm because they are as much handling this issue from another site!!!

    Appreciate your time in putting this together!!!

  • 50. StraightDave  |  March 6, 2014 at 9:06 am

    Can we put in an entry for Sept 29: SCOTUS returns from summer vacation, pulls a ME+ Circuit appeal out of their inbox and goes, "oh crap!"

  • 51. sfbob  |  March 6, 2014 at 10:43 am

    Actually the calendar entry would be for October 6. "First Monday in October" is when the court reconvenes.

  • 52. Ragavendran  |  March 6, 2014 at 10:47 am

    Awesome! Before I saw this, I also started a public Google calendar (with events starting June 26, 2013) last night so anyone could add events from it to their calendars, set reminders, etc. So far I've added major events from Sevcik and Kitchen. Tonight, I'll add more. But I must say, while my calendar is just a calendar, your spreadsheet presents the information with a different structure, circuit-wise and then state-wise. I will say it again – awesome! Feel free to pull out event info from here on to your spreadsheet:

  • 53. Ragavendran  |  March 6, 2014 at 10:53 am

    One problem I see in my calendar is that my color-coding is not showing up with the public link. And there is no setting to change that. Perhaps I should split the events into different calendars, one for each circuit? But that will likely be a mess – I'll see what I can do.

  • 54. Pat  |  March 6, 2014 at 2:15 pm

    OK I have checked that all future events from your calendar match my table. I wasn't planning to include past events in the spreadsheet, but keeping the history in your calendar is perfect.
    Actually, since you are always very well informed on all cases, I wonder if you would agree to help edit my table? I could just give you the editing rights, and if we get another 1 or 2 frequent and reliable posters on here to maintain it, that would be perfect (and would avoid making it too messy by opening it to anyone with the link)

  • 55. grod  |  March 6, 2014 at 7:07 pm

    Pat well done! How are you handling the class action suit in Utah re valid in-state marriage recognition? The so-call 1365 marriages!

  • 56. Ragavendran  |  March 6, 2014 at 8:21 pm

    Notable events in Evans v. Utah [2:14-cv-55]:
    (1) January 28. Removed to district court (Senior Judge Kimball, Clinton appointee).
    (2) February 6. Court GRANTS Plaintiffs' motion to expedite briefing and hearing schedule.
    (3) February 21. Response memo from Utah filed.
    (4) February 26. Motion to (partially) dismiss Complaint and memo in support filed by Utah.
    (5) February 26. Answer to Complaint filed by Utah.
    (6) March 4. Reply filed by Plaintiffs. This completes briefing.
    (7) March 12 at 10am. MOTION HEARING.

    I presume no matter which way the Court rules, it will be appealed with an expedition request to the 10th Circuit, which is already throbbing with two related appeals.

    Note that Judge Shelby isn't a mormon (to the best of my knowledge, and supported by this article) but Senior Judge Kimball is as almost mormonic(?) as one could get, according to Wikipedia. He has has served in many leadership positions within LDS, including bishop, high councilor, stake president, and Regional representative of the Twelve.

  • 57. Pat  |  March 7, 2014 at 12:38 am

    Good point, I've added it

  • 58. TLPitt  |  March 6, 2014 at 6:25 am

    Pat, the name for the PA trial is incorrect, it is "Whitewood" (Whitewood v. Wolf)

  • 59. Pat  |  March 6, 2014 at 7:03 am

    Thanks, that's corrected.

  • 60. StraightDave  |  March 6, 2014 at 8:59 am

    Mea culpa. Awesome job Pat!! Hopefully we can collectively keep this maintained, either by feeding info to EoT staff or directly.
    I would generally prefer editing control be maintained by EoT. (paranoid? a bit) Sorry to draft you ultra-busy guys for more work, but we can do our part to help make that easier.

  • 61. Pat  |  March 6, 2014 at 9:34 am

    I agree that letting everybody edit the file is probably not a smart idea, since anyone with the link could (intentionally or not) mess with it.
    Either the EoT team can agree to maintain it, or I can also handle it and give editing rights to a few of you who are interested

  • 62. Tim  |  March 6, 2014 at 8:28 pm

    Got a question… For the court lovers or anyone else. When these cases are being filed in Federal district court, do the plaintiffs know which judge they'll have. For example, would they know it's a judge appointed by a Republican or Democrat or one they think may be pro-equality from past decisions reading the tea leaves? Or are the judges randomly assigned and it's the luck of the draw? All but one of the decisions since December have been from Democratic appointed judges. Looking forward to a response.

  • 63. Ragavendran  |  March 6, 2014 at 8:35 pm

    It's random. This might help you (IANAL):

  • 64. M.-  |  March 6, 2014 at 9:43 pm

    Hi to everyone.. One question please: do we know now the names of the Judges in the panel hearing these cases? Thanks!!

  • 65. Ragavendran  |  March 7, 2014 at 6:31 am

    I heard in another thread that it'll be the two who issued the stay, plus one unknown to be determined a week before the trial.

  • 66. Tim  |  March 6, 2014 at 10:06 pm

    I don't think that will be determined until 1 week before the 1st trial starts.

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