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Utah officials won’t ask Tenth Circuit to rehear same-sex marriage case, will go directly to Supreme Court

LGBT Legal Cases Marriage equality Marriage Equality Trials

Tenth Circuit Court of AppealsBen Winslow is reporting that Utah’s attorney general won’t ask the Tenth Circuit Court of Appeals to rehear Kitchen v. Herbert with all the judges of that appeals court. The state had the option of asking for rehearing en banc within 14 days. Today is that deadline.

The state had previously suggested that they were undecided on which course to take. But the decision not to seek rehearing means that they will ask the Supreme Court to review the challenge, sooner rather than later. The state has 90 days from entry of judgment, which occurred on June 25.

Here are Ben Winslow’s tweets, along with a partial statement from the Utah AG’s office:

The statement:


  • 1. Bruno71  |  July 9, 2014 at 12:20 pm

    IN gov. Pence will NOT recognize marriages performed in the state (other than the one they've been ordered to by the 7th Circuit):

  • 2. RCChicago  |  July 9, 2014 at 1:02 pm

    I was in Indiana the last weekend in June, after the Judge's ruling that declared the ban unconstitutional. Ducks were falling from the sky, pine trees were bursting spontaneously into flame, the grass was coming up orange and the sun wouldn't set. Now that Pence has indicated that he won't recognize these marriages, I'm sure everything will be turned right side up again (bitter sarcasm in case there's any question).

  • 3. debater7474  |  July 9, 2014 at 12:20 pm

    Although this might be a silly question, I wonder if the local Utah attorney will handle oral argument and briefing if Kitchen is the case selected by SCOTUS. I imagine Boies and Olson will ask to come in and do the Supreme Court work. I don't really have a strong preference for who argues and briefs the case, but I do think it will be interesting to see who gets to argue one of the most important civil rights cases in modern history.

  • 4. sfbob  |  July 9, 2014 at 12:28 pm

    The AG's office has proven itself to be utterly incompetent and clueless not only in terms of its own work but in terms of picking outside counsel. So it would be a choice between dumb and dumber.

    That having been said I can't see anyone the state might possibly hire standing up against our side's attorneys.

  • 5. debater7474  |  July 9, 2014 at 1:06 pm

    I was talking about our side's attorneys, not who Utah hires. Utah will probably end up hiring Paul Clement.

  • 6. sfbob  |  July 9, 2014 at 1:46 pm

    Ah, I misunderstood you there. As brandall noted below, the local attorneys have already paired with NCLR. I shouldn't claim objectivity as I actually know people who work at NCLR but at the risk of merely being partisan I don't think they could do much better unless they were to call in Boies and Olson.

    I suppose the state will be better represented by Paul Clement than it was by either the AG or their outside counsel but still…Clement represented BLAG on Windsor and look how well that worked out for the losing side. About the only argument Clement can possibly make is that the state can do that which the federal government cannot. And given the enormity of the caveat in Kennedy's opinion (where he stated that the definition of marriage is up to the states except that the states can't run afoul of the 14th Amendment) I'm not sure what's really left in Clement's arsenal.

  • 7. brandall  |  July 9, 2014 at 12:34 pm

    Why would Boies and Olson come in? This case was handled by a local firm, Magleby & Greenwood.

  • 8. sfbob  |  July 9, 2014 at 12:47 pm

    Depending on their Supreme Court experience it would not be surprising if they chose to partner with attorneys who have argued similar cases in front of the court rather than going it alone.

  • 9. RCChicago  |  July 9, 2014 at 1:08 pm

    I believe they would need to be go through the process of getting certified to speak before the Supremes. After a quick look at their website, I couldn't find any indication of whether or not they already are.

  • 10. Scottie Thomaston  |  July 9, 2014 at 1:14 pm

    They just have to be members of the Supreme Court bar and it's a really easy process to do that. It's likely they already are, or they could do that soon. I wouldn't think they'd have to involve other lawyers.

  • 11. RCChicago  |  July 9, 2014 at 1:22 pm

    Thanks, Scottie. They'd have a beautifully articulated ruling from Judge Shelby to work with, in addition to their own briefs, and they'd be speaking in opposition to nonsensical arguments. It would seem fair to give them a shot to come full circle and complete the work that they started.

  • 12. brandall  |  July 9, 2014 at 1:29 pm

    Something went off in the back of my mind and….they already partnered with NCLR.

    Said Peggy Tomsic of Magleby & Greenwood, P.C.: “We believe it is in our clients’ best interest now that the case is on appeal, and particularly since it is on an expedited briefing schedule, to have a national organization with significant experience litigating and winning marriage equality cases to enhance our perspective and fire-power as we move forward.

    We also wanted a national organization that has a real connection with Utah. Kate Kendell, NCLR’s Executive Director, was raised in Utah, worked here as a lawyer for many years, and has a daughter living here who finally had the opportunity to marry the love of her life when Judge Shelby issued his ruling.

  • 13. Mike_Baltimore  |  July 9, 2014 at 1:55 pm

    As in all court cases, the attorney or attorneys arguing the case must be eligible and licensed to argue the case in that courtroom. (I think the only exception would be a defendant who is arguing their own case – a Constitutionally guaranteed right of all defendants). Attorneys arguing a case before SCOTUS MUST be licensed to argue in front of SCOTUS. As with almost all (maybe all) US courts, SCOTUS does not give out a 'day pass' to attorneys, but rather only allows attorneys who have passed the SCOTUS bar exam to argue the case.

    If any Magleby & Greenwood attorneys meet the criteria, they would be eligible to argue the case. If not, outside counsel would have to be brought in.

    Note – eligibility does not automatically indicate that a firm will or will not argue the case, it just means one or more attorneys is eligible to argue the case. Who actually argues the case usually depends on who can do it best (along with the 'depth of the client's pocket book'). If the 'local firm' and the client think the 'local firm' can do an adequate or better job (and the firm is licensed to perform the job), outside counsel probably won't be called in.

  • 14. Scottie Thomaston  |  July 9, 2014 at 2:37 pm

    No bar exam for Supreme Court bar. There's just a fee and you need two sponsors and you need to be a member of a state bar in good standing for 3 years prior to applying. It's easy.

  • 15. Mike_Baltimore  |  July 9, 2014 at 3:19 pm

    Not quite.

    From Wikipedia:
    "An attorney wishing to practice before the Supreme Court of the United States must apply to do so, must be admitted to the bar of the highest court of a state, must be sponsored by two attorneys already admitted to the Supreme Court bar, must pay a fee and must take either a spoken or written oath."

    The process may be easy for an attorney, but it is not the two- or three-step process you described. There are additional steps that must be taken (either explicitly stated, or implied, in the rules).

    Your description is similar to the instructions a person might receive to bake an apple pie – put a filling between the bottom and top layers of crust, bake it, then eat it.

    Correct, but missing the directions for making the crust, making the filling, the temperature to bake the pie, how long to bake it, cooling the pie, etc. The top layer of crust might be crumbs (how thick, and made of what), 'solid' and similar to the bottom crust (and thus a need for vent holes), 'criss-cross' woven, etc.

  • 16. Japrisot  |  July 9, 2014 at 10:10 pm

    Yeah, it's not as easy as filling out a form.

  • 17. BenG1980  |  July 9, 2014 at 10:15 pm

    It really is that easy. An attorney can be admitted to the SCOTUS bar without ever even appearing in person. It's just a paperwork exercise consisting of a couple steps.

  • 18. Sagesse  |  July 10, 2014 at 3:50 am

    Doesn't Utah have Gene Schaerr, who his position as a partner at a prestigious Washington, D.C., law firm to defend Utah’s laws barring same-sex marriage? He was appointed 'special counsel' to the Utah AG's office, and was given a fellowship at the Sunderland Institute… this is from memory.

  • 19. debater7474  |  July 10, 2014 at 5:47 am

    I'm talking about our side's lawyers.

  • 20. DocZenobia  |  July 9, 2014 at 12:24 pm


  • 21. SeattleRobin  |  July 9, 2014 at 12:26 pm

    Yay! Nice to not have to deal with yet another delaying tactic!

  • 22. brandall  |  July 9, 2014 at 12:29 pm

    And the Utah taxpayers save some money. Of course, if they really wanted to save some money…nah, it's Utah. Not gonna happen.

  • 23. ragefirewolf  |  July 9, 2014 at 12:44 pm

    They may delay by waiting until the very last moment to petition for certiorari with SCOTUS. They do have another 76 days to respond.

  • 24. brandall  |  July 9, 2014 at 12:46 pm

    I SO wanted to down vote your comment. I know….please don't shoot the messenger.

  • 25. ragefirewolf  |  July 10, 2014 at 5:41 am

    That would imply you were tempted to downvote my comment on someone else's behalf rather than your own.

    That said, it's not a pleasant thought. I think people more often downvote for lack of value rather than lack of agreement with the comment. I'm sure this isn't consistent either.

  • 26. brandall  |  July 10, 2014 at 9:17 am

    Ragefirewolf, rereading my comment. I now see the "shoot the messenger" could have been taken to me either you or me. Your comment was simple, good information. I was appreciative of the info. I just did not like hearing they had 76 days to hold out.

    I hardly ever down vote anything (except for a certain troll). I'm sorry I did not write my comment in a clearer way to simple say thank you, but it's frustrating news.

  • 27. Ragavendran  |  July 9, 2014 at 10:09 pm

    Wouldn't the delay be useless? Delay or no delay, the petition will get to SCOTUS well in time for them to consider it during their next term. What is to be gained by waiting for 89 days?

  • 28. ragefirewolf  |  July 10, 2014 at 5:52 am

    It would be totally useless, you're right. 🙂 One cannot assume rational thought where it otherwise does not exist, can they? There have been totally useless delays across the board this whole time.

    There is no gain here either for opponents of ME, even if we were to hypothetically consider their other actions to be rationally based.

  • 29. DoctorHeimlich  |  July 10, 2014 at 9:34 am

    The Utah lawyers might not run out the clock to the very last day, but it just *might* be to their advantage to delay the filing to SCOTUS, to wait for still more rulings to be handed down throughout the country. From their viewpoint, is there really any difference between, say 16 out of 16 judicial rulings striking down marriage bans, and 21 out of 21 rulings? It hardly would make their precarious situation much worse.

    But if they hold out in the hopes that ONE bigoted judge out there sides with them? Or if they get the dissent we're expecting from Judge Niemeyer in the Fourth Circuit? ANYTHING more than the dissent Judge Kelly gave them? It would give them something else to cite in their petition to SCOTUS.

    And let's face it, they don't have anything. So they'll take whatever they can get.

  • 30. brandall  |  July 10, 2014 at 9:43 am

    I agree with you. But, the move yesterday to skip en band makes me wonder if they actually want to be in 1st place for cert and have Kitchen as the case title. From a political POV, the Gov and AG can say "we did everything possible" and "we took the lead on defending our state's rights"…..just a thought.

  • 31. DaveM_OH  |  July 10, 2014 at 9:53 am

    Being first doesn't matter. Being the case that presents the right issues, with the clearest standing of both petitioner and respondent matters.

    And in that aspect, Kitchen is second only to DeBoer in terms of a clean and clear standing and issues presented – but DeBoer won't reach the Court in time. (The other plus for DeBoer is that it was a full trial, not summary judgment – which means that as a rule, appellate courts and SCOTUS review only findings of *law*, not findings of *fact* – meaning many of Judge Friedman's factual basis statements cannot be touched by the appellate courts.)

    Bishop has a long procedural history with standing issues. Bostic has the AG flipping sides (due to an election that replaced Cuccinelli with Herring) during the filing of the case.

  • 32. RobW303  |  July 9, 2014 at 9:44 pm

    True, but what odds will you give me that Reyes won't wait till day 89 to file his appeal, neglect to include necessary attachments, and request extensions because his dog keeps eating his briefs?

  • 33. davepCA  |  July 9, 2014 at 12:40 pm

    Encouraging. I'm sure there will be the usual array of shenanigans and surprises as this progresses, but it looks to me like there are really only two likely outcomes –

    SCOTUS declines to take this up and we win big (all of the states in the 10th)

    SCOTUS takes this up and we win HUGE.

  • 34. Lynn_E  |  July 9, 2014 at 12:46 pm

    Don't overlook the possibility that the same Supreme Court that gave us Hobby Lobby might find that a State may have a religious viewpoint. I say this sarcastically, but nothing the Roberts Court could do would surprise me anymore.

  • 35. sfbob  |  July 9, 2014 at 12:50 pm

    True. Consistency between opinions doesn't seem to be one of the Roberts Court's major concerns.

  • 36. DaveM_OH  |  July 9, 2014 at 12:52 pm

    And to reiterate the timeline:

    The petition for a writ of certiorari is due no later than September 23. The brief in opposition is due 30 days later, along with any amici. The reply brief is due 10 days after that (no later than November 2.)
    The petition will be distributed for conference according to
    which puts this case on the Nov. 25 Conference, assuming UT runs out the clock.

    So we should see an Order Granting Certiorari on either Nov 26 or Dec 1, assuming the Court does not choose to relist for the next Conference (which it may do at its discretion, and as many times as it wants.)

  • 37. Mike_Baltimore  |  July 9, 2014 at 2:19 pm

    Most likely December 1.

    November 26 is the day before Thanksgiving (very few announcements or work done on that day anywhere in the US), while Dec. 1 is a Monday, the usual day for SCOTUS announcements as to which cases have been accepted or rejected. As far as I know, the Court need not be in session when the announcements are made.

  • 38. D.Henderson-Rinehart  |  July 9, 2014 at 2:35 pm

    There's also the possibility that with other marriage appeals coming in soon (I'm thinking Virginia, and perhaps some other state trying to jump directly to SCOTUS, bypassing their Court of Appeals, like Nevada tried), they may wait for briefing to complete in all of them before deciding which/whether to grant cert.

  • 39. brandall  |  July 9, 2014 at 2:13 pm

    Double day! Alito….DENIED

  • 40. DoctorHeimlich  |  July 9, 2014 at 2:18 pm

    He is referring to:

  • 41. brandall  |  July 9, 2014 at 2:20 pm

    Scottie has it in an article headline already. Let's move the discussion there.

  • 42. KarlS  |  July 9, 2014 at 2:36 pm

    Maybe I'm nuts for even mentioning this, but is there -any- chance the Colo AG could have gotten some advance hint on the imminent ruling on Bishop from Oklahoma? It's been 2 weeks since the Kitchen opinion and Bishop was heard just a week after Kitchen.

  • 43. RobW303  |  July 9, 2014 at 10:01 pm

    I don't think you need to read tea leaves to predict the ruling in Bishop, given the great similarity to Kitchen. The delay is most likely to incorporate references to the now precedential Kitchen decision. I expected Judge Crabtree to defer issuing a ruling until after the Bishop ruling, just to have all the ducks in a line. Even though that Colorado case, Brinkman v. Long, is a state rather than federal suit, it hinges on US constitutional protections, and the Bishop ruling might treat some relevant point left out of Kitchen. But, as we found today, Judge Crabtree had no need to wait.

  • 44. RQO  |  July 9, 2014 at 3:15 pm

    Colorado: Who knows what Suthers knows, other than that public sentiment is largely against him. Boulder state district court hearing today packed with pro-ME crowd, and a fair number of reporters in spite of Obama being in Denver. Reporting fuzzy; evidently judge said will rule "very soon" on injunction to stop SS marriage licenses. I presume ruling on validity of existing licenses and possible punishment of Clerk Hall will come later, after another hearing??
    The imminent ruling everyone in CO wants to know is state judge Crabtree's. 3 weeks waiting now.

  • 45. brandall  |  July 9, 2014 at 3:25 pm

    ….I'l like to know what you knew in advance about Crabtree releasing her decision as you were simultaneously commenting about it? Eerie….

    Why don't you post a question about when another state is going to released?

  • 46. RQO  |  July 9, 2014 at 3:46 pm

    Madame Cleo here. Don't you just love it when a judge makes a Republican AG's head spin? I'm sorry, but you have to figure judge Crabtree had some fun with the timing: after the Boulder hearing but before a Boulder ruling.
    Amidst the 10,000 bits of minutiae thrown at us the past few months I will mention the CO judge is a "he", Scott Crabtree, easily enough confused with the "she" Judge Crabb in WI. At least I think so. I can't keep everything straight (hence I came out of the closet).

  • 47. brandall  |  July 9, 2014 at 3:21 pm

    judge: Colorado Gay Marriage Ban Unconstitutional…waiting for Scottie to add article…he's had 30 seconds already!

  • 48. RQO  |  July 9, 2014 at 3:23 pm

    CO: just saw on Politico : State Dist. Judge Crabtree has ruled : marriage discrimination UNCONSTITUTIONAL, ruling stayed pending appeal. That's all I've had time to read. Kinda busy in CO today.

  • 49. Margo Schulter  |  July 9, 2014 at 7:12 pm

    RQO, this has come up before, and I agree: there’s an evident confusion between Judge Crabtree (a state judge in Colorado) and Judge Barbara Crabb in Federal District Court in Wisconsin.

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  • 53. SoCal_Dave  |  July 9, 2014 at 9:46 pm

    Question about Utah's statement (announcing going straight to SCOTUS) – it says…..
    "Utah's Constitutional Amendment 3 is presumed to be constitutional unless the highest court deems otherwise"

    Is that legally correct? I mean, the latest and highest ruling so far is that Amend.3 is unconstitutional. It seems to me (not a lawyer) that that ruling would be the presumed position unless and until SCOTUS says otherwise.
    Put another way, if SCOTUS says nothing (denies cert) that ruling is the one in effect. (no?)

  • 54. SeattleRobin  |  July 9, 2014 at 9:57 pm

    Yeah, no lawyer here either. But that just doesn't fit. Two courts have declared it unconstitutional, so it seems to me the correct way to describe things is it's presumed unconstitutional unless the highest court overturns the circuit court. Besides, that's a weird way to look at things, since many laws that get ruled unconstitutional are never even reviewed by the highest court. So how can they be presumed constitutional unless that happens?

  • 55. Retired_Lawyer  |  July 10, 2014 at 5:43 am

    In all likelihood, Sean Reyes will have the Utah defendants in Kitchen v. Herbert represented at the Supreme Court by Gene Schaerr, with Monte Neil Stewart as second chair. You may recall that Schaerr left Winston & Strawn's Washington, DC office, where he headed up that firm's appellate and constitutional litigation department, to work as special counsel to Reyes for the 10th Circuit appeal; Stewart had already been taken on for that task before Schaerr's arrival. As for the money, Schaerr has been designated as a "fellow" of the Sutherland Institute, yet another conservative propaganda factory pleased to describe itself as a think tank. Years ago, an arrangement like that would have been called a slush fund, but at least it saves the Utah taxpayers some money.

    It is possible of course that a former Solicitor General like Paul Clement might be brought in for the oral argument, but Schaerr himself is eminently qualified.

  • 56. ragefirewolf  |  July 10, 2014 at 6:07 am

    From the lawyers here or the well-studied of SCOTUS (like Scottie or Ragavendran): Is there a chance SCOTUS will review this this year? Their current term is ending, is it not?

  • 57. DaveM_OH  |  July 10, 2014 at 6:45 am

    Zero chance that Oral Arguments will be this year. The Cert petition will most likely be granted in December, orals in March or April, and Opinion last week in June.

  • 58. BenG1980  |  July 10, 2014 at 6:46 am

    SCOTUS terms begin in early October and last through the following September. As of the end of June, the Court has issued decisions in all of the cases it heard during the 2013 term. The Court is typically in recess during the summer months of July, August and September, but the justices are able to respond to emergency matters that arise during that time. SCOTUS will have ample time to hear the Utah case during the 2014 term (October 2014 – September 2015) if there are at least four justices who decide to grant cert.

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  • 60. Equality On TrialFederal &hellip  |  July 23, 2014 at 4:46 pm

    […] by the Tenth Circuit is headed to the Supreme Court. As we’ve reported, Utah officials will petition the Court to review the case. If the Court denies review, the case will be final in the Tenth […]

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    Equality On TrialUtah officials won’t ask Tenth Circuit to rehear same-sex marriage case, will go directly to Supreme Court » Equality On Trial

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