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Tenth Circuit allows more argument time in Utah same-sex marriage case

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The Tenth Circuit Court of Appeals will allow an hour-long hearing in Kitchen v. Herbert, the challenge to Utah’s same-sex marriage ban. Usually, appeals courts allow 30 minutes in total, 15 per side. But state officials in Utah requested 30 minutes per side, noting that the plaintiffs objected to the request. (The plaintiffs later responded that they’ll defer to the appeals court, and accept whatever it decides in terms of the length of argument.)

The request was granted this morning.

The case will be heard by a three-judge panel: Judge Paul J. Kelly, Jr., an appointee of President George H. W. Bush, Judge Carlos F. Lucero, appointed by President Bill Clinton, and Judge Jerome A. Holmes, appointed by President George W. Bush.

The same panel will hear arguments a week later in Bishop v. Oklahoma, the challenge to Oklahoma’s same-sex marriage ban.

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. Mario  |  April 7, 2014 at 11:10 am

    Will there be a way to hear the arguments?

  • 2. Scottie Thomaston  |  April 7, 2014 at 11:13 am

    Audio will be posted within a day I think.

    We'll be covering them there as well.

  • 3. Keith  |  April 7, 2014 at 11:49 am

    What time is the trial and will you be doing any tweets on Twitter?

  • 4. Scottie Thomaston  |  April 7, 2014 at 11:51 am

    I think the hearing starts at 10am. Live tweeting isn't allowed though – no internet connection is allowed in the court room. So we have to write after the arguments.

  • 5. Pat  |  April 7, 2014 at 3:25 pm

    So the very first reports will be out only after the hearing is over, right? (or maybe, although no internet connection is possible, could people in the courtroom send SMS to the outside during the hearing?)

  • 6. sfbob  |  April 7, 2014 at 3:43 pm

    My understanding is that people are prohibited from using any form of electronic communication in the courtroom. So those who attend will need to take notes using pen and paper (or perhaps a laptop that is not internet enabled).

  • 7. David ROH  |  April 9, 2014 at 9:39 pm

    Restore Our Humanity will have a live feed of interviews from outside the courthouse. There is a placeholder for the feed on the www dot restoreourhumanity dot org page. Legal team, plantiff-appellees, and members of the Restore Our Humanity board (everyone except me—sad face) are there now.

  • 8. Rick O.  |  April 7, 2014 at 12:08 pm

    Denver Post Sunday article noted Judge Holmes has a "spotless" conservative record, esp. on death penalty and affirmative action cases and "shocked" the legal world when he denied Utah a stay of Shelby's ruling. Will be interesting to hear if he has any questions. If the obviously verbose, excessive-length briefs, defense counsel is allowed to just talk for 30 minutes without any/many questions, I'll take that as a good sign.

  • 9. sam  |  April 7, 2014 at 1:01 pm

    Much seems to be being made of Holmes' "conservative" record, but frankly it seems this opinion is a view through quite a narrow prism. For instance people seem to keep going on about his affirmative action stance but he's African American, his reasons are not likely stereotypical conservative ones that would have any impact on his opinion of marriage equality. Having certain opinions and the reasons for those opinions can be very different things. His rejection of the stay is FAR more illuminating.

  • 10. JayJonson  |  April 9, 2014 at 7:24 am

    Judge Bernard Friedman is also regarded as a staunch conservative, yet he wrote one of the most eloquent marriage equality decisions in DeBoer, including the smackdown of Regnerus.

  • 11. Klaus  |  April 8, 2014 at 12:29 am

    That may be true, but even a conservative can be right now and then.

  • 12. Lynn E  |  April 8, 2014 at 1:45 am

    A stopped clock is right twice a day.

  • 13. sam  |  April 7, 2014 at 1:05 pm

    Incidentally, didn't one of the justices say once upon a time that attorneys in oral arguments should "get to the point"? I think it was Lucero, perhaps the state has given up on trying to win him over…

  • 14. Terry  |  April 7, 2014 at 4:36 pm

    It was Kelly.

  • 15. KarlS  |  April 7, 2014 at 3:44 pm

    Is it still scheduled for Thursday the 10th? None of the info surrounding this seems to indicate…

  • 16. Josh  |  April 7, 2014 at 4:41 pm

    Yea, what is the date of it? Recapping that would be nice in the article.

  • 17. Guest  |  April 8, 2014 at 5:33 am

    Yes, Thursday the 10th.

  • 18. Mike in Baltimore  |  April 7, 2014 at 5:02 pm

    In other words, based on precedent that the state of Utah has already established, the Circuit Court is allowing the state of Utah 15 more minutes of argument time to establish a more firm noose around their own neck. I wouldn't be surprised if the Kitchen side didn't try to take all their time, but will be 'forced' by the court to do so.

    To me, the longer the state argues, the easier it probably will be to write a decision shooting down each and every argument the state presents. After all, so far, Utah has not presented any argument that benefits the state, and this hearing is not about the facts as determined in the previous court, but the violation of law and court procedure technicalities when the case was in the District Court.

  • 19. ebohlman  |  April 7, 2014 at 6:11 pm

    There's no factual record in Kitchen as it was decided on summary judgment. Perry and De Boer are the only ME cases with factual records. The panel is, for all practical purposes, hearing the case anew.

  • 20. Mike in Baltimore  |  April 7, 2014 at 11:43 pm

    "The circuit courts are intermediate appellate courts. The circuit courts do not handle jury trials. They only handle cases where a party argues that a district court judge made an error in handling their case."
    (…. , under 'Role of the Circuit Courts'.)

    The ONLY arguments are if or if not the District Court judge made an error in handling their case.

  • 21. Rose  |  April 8, 2014 at 12:07 am

    The State of Utah could talk for 5 hours and ALL they would be doing is repeating arguments that have ALREADY failed before and will FAIL again here.

    My hope is that it WON'T take long for the 10th to make it's ruling known for either case before them!!!

    And just because the ruling from the District Court was a Summary Judgment……DOESN'T mean that it will be a new case before the Appeals Court……transcripts are available for the Justices!!!

  • 22. JustMe  |  April 8, 2014 at 4:20 am

    Summary Judgments are heard de novo…

    "The grant or denial of summary judgment is reviewed de novo. B&G Enters., Ltd. v. United States, 220 F.3d 1318, 1322 (11th Cir. 2000); Thornton v. E.I. Du Pont de Numours & Co., 22 F.3d 284, 288 (11th Cir. 1994). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999). The court must view all evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party. St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999)."

  • 23. Ragavendran  |  April 10, 2014 at 1:16 pm

    In the oral argument audio today, both sides stipulated that this is a de novo review, meaning that Shelby's ruling has no value. But despite that, several references were made to Shelby's ruling. For instance, our side repeatedly disagreed with Shelby that there was no animus in Amendment 3. This heated up Kelly a lot and he started lashing out at our attorney, disagreeing with her on the animus issue, and following that, other issues as well. Anyway, this will come down to the appellate briefs and oral argument.

  • 24. Marriage Equality Round-U&hellip  |  April 8, 2014 at 7:38 am

    […] USA, Utah: The hearing in the Utah marriage equality case will be a full hour, twice as long as usual. full story […]

  • 25. Richard L  |  April 9, 2014 at 6:13 am

    Sometimes I scan the Utah sites – this one says Gayle R. is being quiet and may be changing tactics. Now I guess they want to tell their stories like we have been telling our stories. I can't wait to hear how they will finally explain how SSM hurts them. The comments are pretty good, and it sounds like taxpayers in general are none too happy about the $ being spent.

    Eventhough this has been a long slog, and I've watched it since George Bush and all those fear-based TV commercials led to constitutional bans across the country, the endless PR and media coverage has helped inform just how quintessentially irrational SSM bans are. Is there any way to tell how NOM's finances are?

  • 26. Zack12  |  April 9, 2014 at 7:01 am

    I imagine she's being quiet because the bigots trying to defend the ban let her and others know that making the usual kinds of statements they have made about gays and lesbians will hurt their efforts to defend the ban, which are already on shaky ground.

  • 27. Rick O.  |  April 9, 2014 at 7:13 am

    When is the last time there were TV ads running in several states in advance of a federal court hearing? And it's all pro-ME? Amazing.
    Press is much quieter in Denver than Salt Lake, and not much politically either even though this is party caucus season in CO and lots of ads running already for November election. My impression is both pro and anti sides firmly expect a ruling upholding Shelby, and that ME is a fait accompli.
    Nearby? – ME rally this evening at fed courthouse, Denver at 6:30pm. Lovely weather.

  • 28. Ragavendran  |  April 10, 2014 at 9:46 am

    Utah tries to ditch Regnerus last-minute:

  • 29. jdw  |  April 10, 2014 at 9:56 am

    Is anyone live blogging this?

  • 30. Ragavendran  |  April 10, 2014 at 10:00 am

    The 10th Circuit doesn't allow any kind of recording or tweeting/blogging from the courthouse, so we'll have to wait to know what happened. The official audio of oral argument will be posted on the 10th Circuit's website within 24 hours.

  • 31. DrHeimlich  |  April 10, 2014 at 10:15 am

    Just got out of the Kitchen appeal. Obviously, they'll have a full story coming. But the quick type on the phone is it went very well for us. Lucero is firmly in our camp and there was an audible gasp in the courtroom when, near the end, he actually compared this discrimination to Dred Scott! Holmes seemed to want to make sure standing was satisfied here so this isn't thrown out at SCOTUS like Perry, and did suggest that perhaps Utah might satisfy rational basis review, but seemed to agree that heightened scrutiny applies. Kelly seemed to be siding against us, and basically bristled at the notion that anyone against us must be a bigot. But he might still be winnable, and we seem to have a 2-1 win even without him.

  • 32. jdw  |  April 10, 2014 at 10:30 am

    I think we looked at Holmes as likely based on his role in the 2-0 decision to not stay the lower court. It would be an odd reversal to not have stayed the ruling and then now overturn the ruling.

  • 33. JimT  |  April 10, 2014 at 10:37 am

    If we do receive a favorable ruling, I wonder how likely the ruling would be stayed by these judges for SCOTUS.

  • 34. DrHeimlich  |  April 10, 2014 at 10:42 am

    There was absolutely no discussion of a stay. This is purely my guess, but I would suspect that after basically having SCOTUS tacitly slap them on the wrist for not issuing a stay before, they probably won't thumb their noses by not doing it again.

  • 35. jdw  |  April 10, 2014 at 10:45 am

    Agreed. One does wonder if they will hand down the ruling on UT and OK on the same day. Given the same panel, the similar issues, likely the same 2-1 or 3-0 ruling, it wouldn't make any sense to hold one off after the other. And as you say, they'll stay both.

  • 36. Richard L  |  April 10, 2014 at 10:21 am

    I found this site

    Ican get it on my iPad but not PC. Not sure if there is audio.

  • 37. JimT  |  April 10, 2014 at 10:31 am

    There is no audio, tried it twice on a PC and iPad.

  • 38. Kevin  |  April 10, 2014 at 11:16 am

    The oral argument recording is now up.

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