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Three-judge panel announced for Tenth Circuit marriage equality cases

LGBT Legal Cases Marriage equality Marriage Equality Trials

The Tenth Circuit has announced the three-judge panel that will hear oral arguments in Kitchen v. Herbert, the challenge to Utah’s same-sex marriage ban. The three judges will be Judge Paul J. Kelly, Jr., an appointee of President George H. W. Bush, along with Judge Carlos F. Lucero, appointed by President Bill Clinton, and Judge Jerome A. Holmes, appointed by President George W. Bush.

The Tenth Circuit has previously said that the Utah case and the Oklahoma case, Bishop v. Smith, will be heard by the same panel, though the judge’s names aren’t listed on the case page for the Oklahoma case as of this writing.

Thanks to Kathleen Perrin for this filing


  • 1. Mark  |  March 31, 2014 at 7:55 am

    Four Obama appointees and not one got selected. Given Kelly's Catholic connections (Fordham, Notre Dame), this looks like a 2-1 loss.

  • 2. Ragavendran  |  March 31, 2014 at 8:07 am

    Senior Judge Kelly has been recognized for his "sterling character" and "unquestioned integrity" in 2008, so I wouldn't give up on him yet. See below for the news and a brief bio. He's also a New Yorker:

    The Tenth Circuit Professionalism Award is presented annually to honor a senior practicing lawyer or judge whose life and practice display sterling character and unquestioned integrity, coupled with ongoing dedication to the highest standards of the legal profession. Candidates are nominated through circuit-wide open nominations and selected by a panel of representatives from both the circuit and the American Inns of Court Foundation.

  • 3. Steve  |  March 31, 2014 at 8:34 am

    Religion has a way of shirt-circuiting people's entire principles and morality though.

  • 4. Tim  |  March 31, 2014 at 8:40 am

    Kennedy is Catholic.

  • 5. Zack12  |  March 31, 2014 at 9:13 am

    And it shows on abortion, not so much for gay marriage.

  • 6. Steve  |  March 31, 2014 at 11:51 am

    And he is as nutty and conservative as Scalia, Alito and Roberts on anything but gay issues.

  • 7. Christian  |  March 31, 2014 at 12:01 pm

    This is true, after 'citizens united' it's hard to have complete faith in the man. But at least in this case we are 3-0

  • 8. Zack12  |  March 31, 2014 at 12:51 pm

    Not on the death penalty.

  • 9. Daniel Rosa  |  March 31, 2014 at 8:11 am

    Jerome A. Holmes said earlier that state officials in Utah didn't show irreparable harm for them to issue a stay of the opinion. He is probably on our side. I don't about the other judges but one of them was a Clinton Appointee. Hopefully a Liberal.

  • 10. Utahn  |  March 31, 2014 at 8:13 am

    I haven't posted here before, but have been reading the site for months. I'm a gay man, living in Utah. In December, my husband and I got married on the 23rd of December, after being together for over 4 years. It was a great Christmas Present. We didn't want to trek off to another state. So, "Hello EoT, here I am!"

    I just wanted to say, that being nominated by a republican doesn't necessarily mean anything. Other judges, whether having been appointed by GHWB or GWB have also struck down bans. Also, didn't the 10th deny THREE separate requests for a stay in December. I think it was three (or four), with one of them being due a procedural flop.

  • 11. Utahn  |  March 31, 2014 at 8:15 am

    Oh, I forgot to add, that if I remember correctly, multiple judges denied the separate stay requests, but IANAL, and I'm not sure whether any of those judges were those who are listed in this panel, or if there's any significance to that.

  • 12. davep  |  March 31, 2014 at 8:27 am

    Welcome, Utahn, and congrats to you and your husband!

  • 13. Utahn  |  March 31, 2014 at 8:47 am

    Thank you, thank you. He is Military, so we've been worried about what happens if (Gov.) Herbert and (AG) Reyes get their [hissy-fit] way and do eventually invalidate our marriage license. It's a big concern since his family still claims he was "turned gay" (they ignored the first 27 years of his life, apparently), and wanted to have him legally committed to "rehabilitate him." I can't imagine if they were allowed to supersede his wishes, and to make decisions for his medical care, etc., in the event of an accident. Hopefully, even if they don't have to recognize our marriages in the intervening time (I'm hoping that ruling comes down), or if, forbid, the licenses get overturned, the FedGov will still recognize our license at that point. We will of course get married in another state if that actually happens, but the logistics of that are not always feasible.

    I'm keeping my fingers crossed that the 10th rules favorably, and I think they will, but there's always the doubt in the back of you mind. The case should be open and shut, but who knows what will happen in the individual circuits. Like Steve said, religion can short circuit principles and morality; I see it here every day. I wish SCOTUS would take it up and be done with it, but as eager as I am, during the stampede around Christmas, I met couples that have been together longer than I've been alive. How they've endured 40-50+ Years, I'll never even know.

  • 14. Utahn  |  March 31, 2014 at 8:50 am

    Edit: I meant to say, "(I'm hoping that ruling comes down…[In our favor]).

  • 15. RCChicago  |  April 1, 2014 at 2:50 pm

    Thank you for sharing your life particulars with us. I was horrified to read about what your partner has to endure from his family. These are the kinds of details that exemplify why these protective laws are necessary. I have to add that, during Christmas Eve services, what I thought about most was the very happy news about Judge Shelby's ruling.

  • 16. Ragavendran  |  March 31, 2014 at 8:46 am

    Welcome and Congrats! I agree that republican appointees are not necessarily prejudiced against us. Reagan appointees such as Sandra Day O'Connor, Anthony Kennedy, Bernard Friedman, for example. And Bush Sr. appointees Vaughn Walker, John Heyburn. Kelly might or might not be in the same league. Though (afaik) we are yet to see a Bush Jr. nominee rule in our favor, as Daniel points out above, Holmes did join Bacharach's opinion denying Utah a stay in Kitchen.

  • 17. JayJonson  |  April 2, 2014 at 10:31 am

    I don't give Sandra Day O'Connor quite that accolades that you do, Ragavendran. Yes, she did vote against Texas in the Lawrence case, but refused to join in the ruling striking down Hardwick, which she voted for. She thought the Texas law was unconstitutional only because it singled out only homosexual conduct. She was fine with sodomy laws as long as they covered both homosexual and heterosexual conduct. As we know, of course, even when such laws covered both gay and straight couples, almost all of the people who suffered from them were gay. Of course, she did perform a same-sex marriage after she left the Court, so I presume she would have voted the right way on DOMA.

  • 18. Ragavendran  |  April 2, 2014 at 10:47 am

    I do agree with you about what O'Connor did in Bowers and how she appeared to stay consistent with that vote by writing separately in Lawrence concurring only in opinion but not in rationale. I see what happened in the India Supreme Court in December as an "O'Connor"-like opinion because India's sodomy law doesn't single out a specific population based on gender or sexual orientation either, and our Supreme Court therefore held that no equal protection law was violated. It could have still ruled that it violated due process (right to privacy and liberty), but it didn't, finding that a rational basis existed to limit that right in that way. In short, it was our Bowers moment, as Dr. Z pointed out in an earlier comment thread.

    Coming back to O'Connor, even though it may be (but likely not) that her ideology/thinking did not evolve from Bowers to Lawrence, she did recognize and rule in favor of equal protection. Therefore, while I may be wrong here, I would guess that if O'Connor were to be presented with the marriage equality question today (or even in 2003), she would still concur with the liberal four in striking down the marriage bans based on equal protection, but would write separately that the bans do not violate due process (for the same reason that she disagreed with that in Lawrence). If this difference necessitates a "second-tier" supporter status for her, then okay 🙂

  • 19. JayJonson  |  April 2, 2014 at 11:19 am

    I would only add that I wish that she had not stepped down from the Court when she did. I think she would have made a sixth vote in favor of Windsor, and were she on the Court, we would not have that snake Alito.

  • 20. Zack12  |  April 2, 2014 at 12:20 pm

    Indeed but in the same breath, if she hadn't help give Florida to George W in 2000, we wouldn't have had Alito or Roberts either.

  • 21. CarrotCakeMan  |  March 31, 2014 at 8:31 am

    While Kelly might be involved in one of the groups of anti-gay Catholics, lay Catholics don't necessarily share the anti-gay prejudices of the bishops:

    "Sixty-two percent of Catholics said they were in favor of legalizing marriage for same-sex couples. Catholics approved of same-sex marriage at a higher rate than Americans as a whole"

    My own extended Catholic family tends to reject the bishops' crass political machinations precisely because they know my older brother and I are gay, and they place family first. this is the value of being open about ourselves.

  • 22. Zack12  |  March 31, 2014 at 9:32 am

    My family does as well. Not to be too blunt but my aunt and uncle along with many members of their congregation let their local priest know his option on sex only being for procreation was NOT a welcome one.

  • 23. Jesse  |  March 31, 2014 at 1:43 pm

    Which is funny because if you keep up with Pope Francis, he's essentially steered the Catholic church away from trying to fight against these state bans on the LGBT community.

    If you're going to identify yourself as Catholic, shouldn't you be listening to the spiritual leader of your faith?

  • 24. Mike in Baltimore  |  March 31, 2014 at 3:45 pm

    When my first step-father (Paul) died in 1962, our nearest neighbor (a Polish Catholic) was told by his priest to NOT attend the funeral or burial, as they would be done in a non-Catholic manner.

    Our neighbor told the priest that:
    1. Paul was his nearest neighbor;
    2. Andrew had known Paul for his entire life, and was not going to disrespect his neighbor in the manner the priest told him to do; and
    3. Andrew was friends with the Bishop, and the Bishop agreed with Andrew, so the priest should speak with the Bishop.

    The priest threatened Andrew with excommunication and an eternity in Hell. Andrew attended the funeral and burial, and the priest was reassigned to another parish soon after.

    Some think of the Catholic church as monolithic. Generally, the hierarchy is, but not always. And the beliefs and behaviors of the 'non-hierarchy' is definitely NOT monolithic.

  • 25. Larry  |  March 31, 2014 at 12:43 pm

    Bit of math fun. There's 11 members of the 10th Circuit. There are 165 unique panels of 3 judges (ignoring complications like designating district judges, or the judges not having equal workloads). The odds of not choosing any judges appointed by Obama are 21%. The odds of choosing 2 Republicans + 1 Democrat are 36%. Considering the huge number of cases, there's no conspiracy in these particular judges being selected. Also, the odds of an all-Republican appointed panel are 6%.

  • 26. Andrew  |  March 31, 2014 at 12:56 pm

    Five federal judges have ruled on this issue since Windsor – three appointed by Democratic Presidents and two appointed by Republican Presidents. They have been unanimous in holding that same-sex marriage bans run afoul of Windsor. I'd say your presumption that any Republican appointee is going to vote against marriage equality is not in line with recent developments.

  • 27. WeTheSheeple  |  March 31, 2014 at 8:08 am

    Hmmmm, it's hard to judge our chances based on the panel of judges, but I'd say our odds of winning just decreased.

  • 28. Guest  |  March 31, 2014 at 12:02 pm

    Really? What pathetic argument will they adopt that hasn't been eviscerated by the SCOTUS?

  • 29. Ragavendran  |  March 31, 2014 at 8:12 am

    @EoT Team: Do we know the delegation that'll be traveling to Denver for the Utah and Oklahoma appeals? Is it possible to organize some sort of informal get-together (like a dinner) in between the two appeals with those of us who live in and around the Denver area? I'd be stoked to meet some of the team members (and other commentators) in person!

  • 30. Scottie Thomaston  |  March 31, 2014 at 8:21 am

    I'm not sure who all is going. 🙁 I'm going for sure. Kathleen Perrin is. Jacob is actually traveling so he's not around. I'll be there the whole week though so if there's a get together type of thing that might be fun. I'm just not sure who all would be up for it!

  • 31. Ragavendran  |  March 31, 2014 at 8:53 am

    Scottie, even if it's just you and Kathleen, I'm in! And to all other readers/commentators who will be around the Denver area at that time, can I please request you to reply to Scottie's comment if you'd be interested in such a get-together? Thanks.

  • 32. Ragavendran  |  April 3, 2014 at 4:19 pm

    Are you planning to attend this April 9 rally at the Courthouse, Scottie? I hope to see you there, if you do!

  • 33. David ROH  |  March 31, 2014 at 9:00 pm

    There will be a send-off rally in Salt Lake City and a rally in Denver the evening of April 9. The legal team and plaintiff-appellees will be busy with official stuff, but members of the Restore Our Humanity board will be willing to talk your ears off.

  • 34. Ragavendran  |  March 31, 2014 at 9:05 pm

    Nice, please keep us updated on the details!

  • 35. David ROH  |  April 1, 2014 at 12:05 pm

    Sponsored by Support Marriage Equality in Colorado.
    6:30 p.m. to 7:30 p.m. MDT, Wed., April 9
    Byron White Federal Courthouse, Stout St. between 17th St. and 18th St., Denver

  • 36. Ragavendran  |  April 1, 2014 at 5:21 pm

    Ah, thanks! I found it on FB too:

  • 37. Zack12  |  March 31, 2014 at 8:29 am

    I hate to be negative but the fact there are two Republicans versus one Democrat doesn't make me feel better.
    I know what Jerome Holmes said in December and I know there have been Republican judges who have struck down bans but I'm still leery.
    If nothing else, I remember N Randy Smith's questions during Prop 8 where at times he seemed to be on our side but when push came to shove, he was unable to seperate his religious beliefs from the case at hand.
    I hope it will be different this time.

  • 38. Dann  |  March 31, 2014 at 8:42 am

    Dammit! These judges must keep their "religious beliefs" out of this and follow the law! If they follow Constitutional law we will win.

  • 39. Ragavendran  |  March 31, 2014 at 9:15 am
    At 1:31, Michael Streit, former Iowa Supreme Court Justice says, "we did not believe in gay marriage as such; we believed in equal protection – protection for all people." He hit the nail on the head – one's personal/religious beliefs have to be set aside in a Court of law.

  • 40. Zack12  |  March 31, 2014 at 9:03 am

    On a different note, it could be worse. Tim Tymkovich and Scott Matheson Jr were two names we did NOT want to see come up for this.
    Tymkovich argued on behalf of Colorado during Romer V Evans and is still bitter from that loss. He for sure would have stuck it to us.
    Scott Matheson is Mormon and the brother of retiring Congressman Jim Matheson.
    Jim is a Blue Dog Democrat whose idea of being a moderate Democrat was to vote yes on every anti-gay piece of legislation that came up and encouraged other Democrats to do the same.
    So despite him being an Obama appointee, I highly suspect Scott is like his brother and the other two Mormon judges who ruled against us. His faith would have trumped the law.
    I'm still nervous, but not as nervous as I would have been seeing those two on the list.

  • 41. sam  |  March 31, 2014 at 10:09 am

    Agreed, it could have been worse, at least it seems all three votes could still be in play. We are always going to have the upper hand if it comes down to the arguments. It's not exactly like we have to worry that the state could make a convincing show at hearing…

  • 42. Mike in Baltimore  |  March 31, 2014 at 4:12 pm

    Brothers do not always see things the same way.

    I am gay, but my brother was vehemently anti-gay. Sometimes his wife spoke up against him when he went on a rant about homosexuality. Generally, I stayed quiet, and let my brother make a fool of himself.

    When we were growing up, we sometimes had to carry water (in five gallon buckets) to the animals in the barn during the winter – a hose wouldn't work, and the water pipes froze up about every third year. One year, I cracked my arm on the school playground, the crack not showing up for a week on the doctor's X-rays. When it did show up, my arm was put in a cast (for 10 weeks), I couldn't carry water to the animals. My brother went off (verbally) against me (saying I did it on purpose so I couldn't carry water) and I started to swing the cast on my arm to hit him (on the head) – the only thing our mother said was "I wouldn't do that." My brother ended up carrying all the water to the barn for several more weeks.

  • 43. palerobber  |  April 2, 2014 at 10:14 am

    while you could be right about Scott, there's a big difference between a lifetime appointment and having to face R+16 PVI voters every two years. also, it's not accurate to suggest that Jim voted "yes on every anti-gay piece of legislation" — he supported DADT repeal, for example.

  • 44. Larry  |  March 31, 2014 at 9:08 am

    And how many Republican appointed judges have ruled in our favor?
    Vaughn Walker (CA – Bush Sr)
    Vanessa Bryant (DOMA – Bush Jr)
    Joseph Tauro (DOMA – Nixon)
    Dennis Jacobs (DOMA – Bush Sr)
    Bernard Friedman (MI – Reagan)
    John Heyburn (KY – Bush Sr)
    Oh, and Anthony Kennedy (DOMA – Reagan)

    There's probably some more that I'm forgetting. But I'd be willing to guess that more Republican-appointed judges have ruled for us recently than against us.

  • 45. Tim  |  March 31, 2014 at 9:23 am

    Sandra Day O'Connor

    Thanks Larry.

  • 46. Corey from Maryland  |  March 31, 2014 at 9:11 am

    If there is a 2-1 loss in this case, does it increase the odds that this case will go to the Supreme Court since some jurisdictions will rule in favor and the 10th Circuit presumably against? If this is the case, losing could be winning (albeit it will delays and judicial processes)…

  • 47. Bill S.  |  March 31, 2014 at 9:35 am

    There has yet to be an appellate court that has ruled that same-sex couples have a constitutional right to marry. Only the 8th Circuit has ruled on the issue, holding that they don't (Citizens for Equal Protection v. Bruning). A loss here would not create a circuit split, although that doesn't mean that the Supreme Court would not want to resolve the issue if they feel the Circuit Courts are wrong.

  • 48. Zack12  |  March 31, 2014 at 10:10 am

    It was pre Windsor but you are right that is sadly the only ruling on gay marriage in the circuits.

  • 49. bythesea  |  March 31, 2014 at 1:41 pm

    There was the ruling in the 9th, but that was vacated when SCOTUS ruled on the Prop. 8 case.

  • 50. Rose  |  March 31, 2014 at 9:45 am

    Folks, try and remain positive………the old arguments will be re-heard as NOTHING new will be presented…….I believe the Justices will do the right thing and if for some strange reason that they do rule against us…….there WILL be an appeal to either the full 10th or SCOTUS…..but this fight DOESN'T end with this 3 panel Justice team!!!

  • 51. Dann  |  March 31, 2014 at 9:59 am

    I agree with you Rose. Also, this is the same circuit that passed on issuing a stay.

  • 52. Rose  |  March 31, 2014 at 10:09 am

    We need to look at this is the best way, hope for the best, but be prepared for the worst…..which I'm certain our lawyers are ready for whatever happens……and this is the same Court that refused the stay and rightfully so!!!

    I believe we will be okay……I mean we have faced other Republican Justices before regarding this issue and they have for the most part ruled according to the question and laws before them.

    I'm worried more about the 6th and the 5th than I am the 10th.

  • 53. Guest  |  March 31, 2014 at 10:27 am

    Christian inc. is about to receive a brutal ass kicking. They're going to lose, big time in this appeal because their arguments are shallow and totally pathetic. The SCOTUS will make the connections between these diseased bigots and the "religious freedom" bullshit that is wasting everyone's time, space and energy. After they receive their well deserved death blow, I would like to see Christian Inc. pay for their actions against the gays, and the abortion rights of my sisters.

  • 54. Mike in Baltimore  |  March 31, 2014 at 4:22 pm

    In the Loving case, it was SCOTUS (by a 9-0 vote) that was the first court that ruled for inter-racial marriage in the case. Granted, the previous courts ruling on the case were state of Virginia courts, but they were unanimous in not striking down the racist law.

    Just one example of a case NOT ending until SCOTUS rules (unless no one appeals), and SCOTUS not agreeing with the 'inferior' courts.

  • 55. Everything You Need To Kn&hellip  |  March 31, 2014 at 9:59 am

    […] Republican appointees, Judges Paul Kelly and Jerome Holmes, will hear a case challenging the state of Utah’s refusal to grant marriage licenses to same-sex couple, along with Democratic appointee Judge Carlos Lucero. The case will be heard on April […]

  • 56. sam  |  March 31, 2014 at 10:21 am

    LOL, sounds like Utah could be in trouble…

  • 57. Kevin  |  March 31, 2014 at 10:58 am

    WOW. That is absolutely unpardonable from a judicial standpoint. I am curious if the errors were citation-based, spelling/punctuation/grammar, or substantive facts/points of law.

  • 58. grod  |  March 31, 2014 at 1:35 pm

    Kevin: all of those you cited including 45% page number errors, 4% citation errors and the rest grammar or formatting errors. For one who has made grammatical errors here, I have some sympathy. The request was to submit an amended reply brief. Someone in the AG's office will get quite a razzing.

  • 59. Tim  |  March 31, 2014 at 10:50 pm

    Did the plaintiffs have to submit a revised brief to fix any errors they made? Did they make any? If so, okay then. If not, "hmm", not sure about the reasoning.

  • 60. JayJonson  |  April 2, 2014 at 10:38 am

    Actually, I find Kelly being too solicitous. "You don't want us to be distracted from the merits." Actually, I don' think there is any merit to their arguments, and I don't want judges helping them.

  • 61. StraightDave  |  March 31, 2014 at 1:07 pm

    "You don't want us distracted from the merits [by errors]", writes Judge Kelly.
    Of course they do, UT that is! The merits are not their friends.
    Sloppy writing, sloppy thinking, sloppy logic… they all go together. If the Judge is that much of a stickler, even the corrected brief may not impress him on other grounds.

  • 62. grod  |  March 31, 2014 at 1:42 pm

    Dave: "Such a filing correcting minor errors is not uncommon in cases like this", said Utah Attorney General’s spokeswoman Missy Larsen. After all the brief was 12,000 words in length.

  • 63. AndyInCA  |  March 31, 2014 at 10:57 am

    Agreed… let's stay optimistic. Remember, the state's central argument was based on the Regnerus junk that's since, been thoroughly discredited (by a Republican appointed judge).

  • 64. Terry  |  March 31, 2014 at 12:02 pm

    There are posters on the site who are more "Debbie Downer" like when things may be uncertain or if there's a Republican involved. They use words like "nervous" or "worried" which is what the other side wants – to see gays as weak, the problem, quivering. I'm sure some of it is instinctive due to having to be on the defensive through life for being who you are, but sometimes they appear biased towards that and not able to see things more level-headed. It's becoming old, predictable and tiresome. But at other times, they post interesting info (more fact-based) and that adds to the discussion.

    There are level-headed posters here (fortunately – not pie in the sky, but level-headed for example those that post about the pro-equality Republicans).

    I would venture to guess that there are more pro-equality Republicans in the judiciary than anti-equality Democrats (allowing for exceptions). And the ranks of the pro-equality keep growing. All the marriage rulings help that.

  • 65. Corey from Maryland  |  March 31, 2014 at 12:32 pm

    @Terry, it is a sign of weakness to put on rose-colored glasses and not consider all options and the consequences.

  • 66. bayareajohn  |  March 31, 2014 at 12:37 pm

    Yeah, and wishful thinking and ignorance. Vigilance matters, and waving away fear only works for monsters under the bed, not for the monsters in power.
    The gays in Germany in the 20's though they had it wrapped up too. Then they got wrapped up and put away.

  • 67. Lynn E  |  March 31, 2014 at 12:53 pm

    I won't say "nervous" or "worried," but I am "cautious." The strongest argument on the Utah side is that Windsor left marriage regulation to the States. But this was true at the time of Loving as well. With the Windsor, Lawrence, and Romer decisions, it is clear that, although regulation is left to the States, there are Federal guidelines that must be considered. As a Utahn who missed the opportunity to marry my partner of 23 years, I'm "cautiously optimistic."

  • 68. Steve  |  March 31, 2014 at 4:39 pm

    They always ignore the part where it says that they still have to obey the federal constitution. States think that they are independent countries that can do whatever they want. They only come looking for the federal government when they want money.

  • 69. Tyler O.  |  March 31, 2014 at 1:01 pm

    I completely agree. So many on our side are still in defensive postures. We are winning people!

  • 70. Corey from Maryland  |  March 31, 2014 at 9:05 pm

    Hi Tyler— I like your enthusiasm but please respect those that are being cautious.

  • 71. Terry  |  March 31, 2014 at 12:49 pm

    I agree, but the post isn't referring to rose-colored glasses or wishful thinking. What about the middle? Level-headed. Being level-headed (as mentioned above) is seeing both sides objectively. You can be vigilant and be level-headed. Some posters have a tendency to mainly post the downer side.

  • 72. Supreme Court again takes&hellip  |  March 31, 2014 at 1:24 pm

    […] Briefing in Kentucky, Tennessee same-sex marriage… Three-judge panel announced for Tenth Circuit… […]

  • 73. Taylor  |  March 31, 2014 at 2:03 pm

    Can I just mention that the non-parallel structure of the summary before the jump irks me? Actually, the way it's written implies that one of the Republican-appointed judges was appointed by a Democrat.

    "Two Republican-appointed judges, one appointed by a Democratic president, will be on panel."


    "Two Republican-appointed judges and one Democrat-appointed judge will be on the panel."

  • 74. Rumsey  |  March 31, 2014 at 4:08 pm


  • 75. USA, Oklahoma/Utah: Tenth&hellip  |  March 31, 2014 at 8:38 pm

    […] Equality on Trial reports: […]

  • 76. Ragavendran  |  March 31, 2014 at 8:55 pm

    Observer: Panel on Utah gay marriage case ‘slightly’ conservative

    Everything You Need To Know About The Judges That Will Decide The Utah Marriage Equality Case

  • 77. ebohlman  |  March 31, 2014 at 9:06 pm

    Also see a ThinkProgress article that suggests "cautious optimism":

  • 78. Ragavendran  |  March 31, 2014 at 9:08 pm

    Thanks! I think we both added the link at the same time 🙂

  • 79. B Z  |  April 1, 2014 at 7:46 am

    Will the audio of the arguments be online?

  • 80. Scottie Thomaston  |  April 1, 2014 at 9:30 am

    I think they're supposed to release same-day audio. We will also be there, and covering the arguments, although we can't live blog.

  • 81. Ragavendran  |  April 1, 2014 at 10:03 am

    As of last fall, all but three circuits (Second, Tenth, Eleventh) provide free and public access to audio recordings of oral arguments. More on this here. The Tenth Circuit requires a motion to be filed by any party that wants the audio, and hearsay is that such motions are routinely granted.

    However, an exception seems to have been made for the Kitchen and Bishop cases: The Court has announced that "audio recordings of the arguments will be made available on the court’s public website within 24 hours of the hearing."

  • 82. Keith  |  April 1, 2014 at 9:21 am

    Everyone seems to be forgetting that the judges in the PropH8 case didn't have a ruling from SCOTUS when they originally struck down the ban in California. Since the Windsor case specifically states that the decision was based upon the equal protection clause and that such a ban was based upon historical animus towards a particular group, all future judicial decisions must use this legal precedent as part of the decision-making and ruling process. It's near impossible that a circuit court could find a ban that doesn't violate equal protection, and I doubt the 10th circuit will be able to find a way around the SCOTUS ruling and agree and uphold the Utah and Oklahoma bans. Since so far there has been no disagreement among lower district courts, my guess is that we will see no disagreement at the Circuit levels either since the SCOTUS ruling in Windsor was fairly clear (albeit not explicit) that laws targeting LGBT inequality will not stand the "rational plus" scrutiny currently in place.

  • 83. Rick O.  |  April 1, 2014 at 3:25 pm

    We can hope so. I'm sure all of us keep wracking our brains, fearing a conservative argument for state's rights and "because that's the way it has always been" that gets around Kennedy's litany of discrimination. So far, nothing seems to have appeared, though "genderless" and lower birth rates get points for creative writing. Friedman's trial record demolition of the "experts", Regnerus et. al., may have moved the debate from fiction to fact for good? That said, I'll miss thinking I can cause hurricanes.

  • 84. Equality On TrialTenth Ci&hellip  |  April 7, 2014 at 11:04 am

    […] case will be heard by a three-judge panel: Judge Paul J. Kelly, Jr., an appointee of President George H. W. Bush, […]

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