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Utah officials ask Supreme Court to hear challenge to same-sex marriage ban


As expected, Utah officials have filed a petition in the Supreme Court asking the Justices to review the Tenth Circuit’s decision in Kitchen v. Herbert.

The Utah case is the first same-sex marriage case to reach the Court after its decision last year in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act (DOMA).

The petition frames the issue as uniquely important, no matter the outcome: “It comes down to this: thousands of couples are unconstitutionally being denied marriage, or millions of voters are being disenfranchised of their vote to define marriage.”

“Either way,” the petition says, the Court should step in, and “this case is the proper vehicle to do so.”

Framed this way, the officials are able to make the argument that the case is worthy of Supreme Court review, and a momentous ruling would be handed down either way.

Defendants in two other marriage cases, from Virginia and Oklahoma, have promised to file petitions in the Supreme Court.

EqualityOnTrial is here in Cincinnati to cover the next set of marriage cases in the Sixth Circuit Court of Appeals. Tomorrow, the appeals court will hear six cases challenging same-sex marriage bans and non-recognition provisions from four states.

Thanks to Equality Case Files for these filings


  • 1. SethInMaryland  |  August 5, 2014 at 2:07 pm

    good i was hopeing kitchens would be the first and i hope the court accepts this case

  • 2. brandall  |  August 5, 2014 at 2:13 pm

    AG says Virginia will file their request for cert at the Supreme Court this Friday

    It's like they are all racing to get in quickly!

  • 3. JayJonson  |  August 5, 2014 at 3:48 pm

    Unfortunately, Attorney General Herring is asking for a stay pending cert.

  • 4. Rick55845  |  August 5, 2014 at 3:06 pm

    “It comes down to this: thousands of couples are unconstitutionally being denied marriage, or millions of voters are being disenfranchised of their vote to define marriage.”

    We number more than thousands.

    Voters don't have the right to define marriage. It is a fundamental right.

  • 5. Sagesse  |  August 5, 2014 at 6:00 pm

    “It comes down to this: thousands of couples are unconstitutionally being denied marriage, or millions of voters are being disenfranchised of their vote to define marriage.”

    I also find the second half of that sentence cringe-worthy (cringe-inducing?). No one's 'franchise' includes the right to vote on other people's constitutional rights.

  • 6. debater7474  |  August 5, 2014 at 3:09 pm

    I hope the court chooses Bostic. I'd rather have the considerable resources of Boies, Olson, and their massive firms at our disposable than have our entire movement rest on a small firm out of Utah. The stakes are too high.

  • 7. Jen_in_MI  |  August 5, 2014 at 3:46 pm

    Even though the timing won't work, I wish DeBoer would be heard, because that's the only case since Prop 8 where a full trial was conducted.

  • 8. Ragavendran  |  August 5, 2014 at 9:10 pm

    There is a slim chance that a petition for cert before judgment is filed in DeBoer (and other cases) and the Court grants cert (if it chooses to take up Kitchen/Bishop/Bostic). As Windsor demonstrated, it is not just the losing party at the lower court that can file for cert before judgment. Either party can.

  • 9. Dr. Z  |  August 6, 2014 at 7:48 am

    The court can still take note of the findings of fact in DeBoer.

  • 10. brandall  |  August 5, 2014 at 4:22 pm

    There is nothing to prevent the case(s) taken up by SCOTUS teaming with Boies and Olson. Kitchen already includes the NCLR.

  • 11. Rik_SD  |  August 5, 2014 at 5:51 pm

    think they might consolidate resources?

  • 12. brandall  |  August 5, 2014 at 5:57 pm

    Highly likely. AFER has both Boies and Olson's law firms behind them. An incredible amount of resources and money. See the "Case Against 8" on HBO if you have a chance.

  • 13. Rik_SD  |  August 5, 2014 at 6:03 pm

    watched it with my family and boyfriend over the 4th of July. Incredible!

  • 14. debater7474  |  August 5, 2014 at 6:49 pm

    They might consolidate resources, but ultimately the lawyer who takes the podium on argument day will speak for not just for tens of millions across the world, or for same sex marraige, but for all those have come before us and for all those who will come after us. It's important that Boies or Olson fill that that role, rather than an inexperienced (in terms of Supreme Court experience) local Utah attorney.

  • 15. Ragavendran  |  August 5, 2014 at 9:06 pm

    In the event that the cases are consolidated, the Court might extend argument time on both sides, allowing for more than one attorney from our side to take the podium.

  • 16. Dr. Z  |  August 6, 2014 at 7:49 am

    In case you hadn't noticed, the "local Utah attorney" kicked their asses.

  • 17. JayJonson  |  August 6, 2014 at 8:52 am

    Whoever is chosen has a great responsibility. Especially now where things are clearer and more straightforward than it was last year. I remember cringing when Roberta Kaplan seemed to say that she would be happy with a "small get" since her principal concern then had to be that Edie Windsor get her money back. Likewise, Olson and Boies had to challenge the standing of the defendants in Hollingsworth (despite wanting a ruling on the merits) since their principal concern was to bring marriage equality to California.

    Now, the stakes are very high but the lines are also drawn more clearly. Does the fundamental right to marry extend to gay and lesbian couples? Is there a fundamental right to choose your spouse?

    The attorneys involved in these cases have been excellent, whether Peggy Tomsic or Olson and Boies. We have clearly won, at least so far, the battle of the attorneys. The real question is whether the Appeals Court judges and the Supreme Court justices will take seriously the question of equal protection under the law.

  • 18. Dann3377  |  August 5, 2014 at 3:35 pm

    All of these cases are basically the argument. In the end, I don't think it really matters which case is selected. Is it possible they'll combine them?

  • 19. JayJonson  |  August 5, 2014 at 3:41 pm

    More red-state apartheit: Nebraska denies a woman a driver's license because to do so under her legal name would recognize her same-sex marriage:

    I hope this matter is taken to court. It will make an excellent case.

  • 20. SeattleRobin  |  August 5, 2014 at 4:32 pm

    WTF? I'm practically speechless. People can and do change their names without getting married. Accepting that a name has been legally changed is not the same thing as accepting the reason for the change. It only requires proof that it was legally done. It's like the state is going out of its way to find ways to discriminate. Arrrrgh!

  • 21. brandall  |  August 5, 2014 at 6:14 pm

    A couple of weeks ago there was a case in Europe where the court told a married transgender person they had to divorce and then remarry to handle the sex change that occurred during the marriage. Go figure.

  • 22. Ragavendran  |  August 5, 2014 at 9:13 pm

    Here in India, my dad is trying hard to correct a spelling error in his name with his bank. They are racking their brains to figure out how to correct it in their "system". Meanwhile, they are suggesting that it might be quicker for him to close all his accounts, withdraw all his money, then reopen them.

  • 23. Jen_in_MI  |  August 5, 2014 at 9:48 pm

    Wow! That's terrible that your father is having such a hard time with an error not of his making. I guess bumbling bureaucracy knows no national boundaries. ­čśë Here's hoping the issue is resolved without him being I convenienced any further.

  • 24. russellsvocation  |  August 6, 2014 at 10:29 am

    That would work out badly for that bank if it were me. I would close the accounts and open them, at another bank… and smile walking out the door of the first bank with a check in my hand.

  • 25. Mike_Baltimore  |  August 6, 2014 at 11:34 am

    How many times has 'Prince' changed his name?

    The last time was somewhat understandable, since he changed it from an unpronounceable name back to a pronounceable one, but his previous changes of name were at least somewhat questionable.

    I wonder how Nebraska would have handled his name changes?

  • 26. jdw_karasu  |  August 5, 2014 at 4:44 pm

    I'm a broken record on this, but I want to see Kitchen be the Loving v VA moment of this issue. After all the "out of state" funding coming into our state to support Prop 8, color this Californian to have a certain lasting mean spirited streak of wanting the karma circle to be complete by having Utah have the SCOTUS hammer dropped on its head.

  • 27. Margo Schulter  |  August 5, 2014 at 5:12 pm

    A couple of points on the Utah cert. petition: First, they claim that the Tenth Circuit decision involves a conflict in principle with Schuette. However, as lots of the federal courts have recognized, Schuette upheld the right of Michigan voters to make a policy decision on affirmative action where the Constitution itself did not compel the consideration of race. Federal Magistrate Judge Candy Dale in Idaho may have put it best when she said that Schuette upheld the right of an electorate to reject the making of distinctions by race, as opposed to the power to overturn the Fourteenth Amendment by majority vote!

    The second point is that while the cert. petition denies that Utah in any way backpedalled on its claims about childraising, the walkback from Regnerus immediately before the oral argument on April 10 in the Tenth Circuit was obvious and very well reported.

    What do they have left without Regnerus? This quote from p. 24 of the petition is one answer: “Plaintiffs prevail only if everyone agrees that there is no difference in the way men and women parent their children. But even social science experts cannot agree on that proposition. And the Tenth Circuit’s opinion incorrectly presumes that everyone should and must conclude that moms and dads are interchangeable and independently dispensable.”

    In fact, this statement suggests that gender discrimination is involved as well as discrimination by sexual orientation, since the same logic could justifying a range of classic SCOTUS decisions on family law that helped shape the whole area of gender discrimination as calling for heightened scrutiny. I wonder what Justice Ginsburg, who played such a central role as an advocate in some of those cases, would say.

  • 28. Margo Schulter  |  August 5, 2014 at 5:14 pm

    In my last paragraph, that’s “the same logic could justify overturning a range of classic SCOTUS decisions on family law…”

  • 29. StraightDave  |  August 5, 2014 at 6:01 pm

    Thank you, Gene Schaerr ! You just wrote half of Kitchen's brief for him.
    Seriously, folks, I did not need to cherry-pick here. In 3 consecutive paragraphs on pages 22-23, we have the following undeniable points in favor of ME:

    – "Marriage is a socially arranged solution for the problem of getting people to stay together and care for children."
    – "A state has a compelling interest in ensuring the well-being of offspring, planned or unplanned."
    – "State marriage benefits and status encourage unmarried parents to marry and married parents to remain so."

    I'm sure he doesn't realize the irony in writing this in the context of arguing against applying his own values. Which justice will ask him why these don't apply to all couples?

  • 30. brandall  |  August 5, 2014 at 6:06 pm

    These are not the arguments of intelligent people.

  • 31. Jen_in_MI  |  August 5, 2014 at 9:50 pm

    Serious, intelligent – these folks are neither.

  • 32. Ragavendran  |  August 5, 2014 at 9:37 pm

    From the Statement, Page 5: People have many different understandings of the marriage institution. But there are two predominant and competing visions that have been advanced in state referenda across the country. Those who favor redefining marriage as the union of any two or more persons see the institution primarily from an adult-centered perspective.

    This made my blood boil. How devious is this attorney to again thrust polygamy down our throats when it is not at all an issue in this case? And we are NOT seeking to "redefine" marriage! It is a fundamental right that we wish not be denied to us! Full-stop. None of the adult-centric/child-centric stuff. If anything, its fundamental right-centric.

  • 33. Jen_in_MI  |  August 5, 2014 at 9:53 pm

    OF COURSE Utah's brief would speak about polygamy – they would certainly know! LOL But seriously, this is insulting and way beyond offensive, not to mention patently FALSE. I hope the response brief calls this falsehood out in spades.

  • 34. SeattleRobin  |  August 5, 2014 at 11:28 pm

    The adult-centric vs. child-centric stuff is so blatantly grasping at straws. I know some people do get married specifically because they want to raise a family. But I'm certain the vast majority marry because they want that symbolic and legal bond with the adult they love. Decisions about children come later.

    The central meaning of marriage is whatever the two adults make it to be. The state is only relevant in that they issue the necessary license. What the state thinks marriage is about is meaningless to most people, which is proven by all the changes to marriage laws concerning gender roles and divorce over the last century.

  • 35. MichaelGrabow  |  August 6, 2014 at 6:48 am

    Yes, yes, and yes.

  • 36. sfbob  |  August 6, 2014 at 8:44 am

    Consider the traditional marriage vow…"to have and to hold…for better or for worse, in sickness and in health…" and so on. Where is there any mention of children?

  • 37. Leo  |  August 6, 2014 at 8:11 am

    Seems to me like this is just factually false. "redefining marriage as the union of any two or more persons" is by no means a predominant vision advanced in state referenda across the country. It's favored by a small minority. Has there even been a single official ballot argument in favor of it, in any state?

  • 38. brandall  |  August 6, 2014 at 8:25 am

    Great point. It was the Utah Legislature (read Mormon Church) that had to redefine marriage and eliminate polygamy in 1890 as a condition for becoming a state.

  • 39. JayJonson  |  August 6, 2014 at 8:58 am

    These people have no compunction about lying. They think it is commendable to lie if it is for the sake of religion.

  • 40. Terence Weldon  |  August 6, 2014 at 12:51 am

    And yet another Florida county – now no four:

  • 41. SeattleRobin  |  August 6, 2014 at 1:28 am

    I just finished reading Utah's petition for cert, and considering how limited they are in arguments, I thought they did as good a job as possible of presenting their case. I agreed with almost none of it, but they made a good show of sounding persuasive. (Though they did make one egregious mischaracterization of the district court's reason for disregarding Baker.)

    One really weak point of the petition is where they list some of Utah's laws in an attempt to support the idea that Utah has always embraced the child-centric view of marriage for their marriage policies. I suspect there aren't actually any existing laws to prove this point, because the ones they came up with were barely relevant, relating to existing children in cases of divorce, involvement of child protective services, and adoption.

    Such laws don't prove that procreating is central to marriage, rather they merely indicate what happens with children when trouble arises, with or without marriage. They couldn't list a single law that indicates the purpose of marriage is children. But I'd bet a hundred dollars there are dozens of laws on the books relating to marriage that have zilch to do with children.

  • 42. brandall  |  August 6, 2014 at 8:09 am

    Did they bother to reconcile their having to redefine marriage in 1890 from one-man, many women and any possible effects on the children? It is a documented historical fact the Mormons introduced polygamy to increase the number of children among their ranks after the loss of Mormon men in the Mexican-American War in 1846. Polygamy officially began in 1852.

    I hope they did not use the term "traditional" marriage.

  • 43. Samiscat1  |  August 6, 2014 at 9:11 am

    I'm curious about what you say of the Mormon Battalion during Mexican-American War. I'm not aware of the casualties, but the Mormons were practicing polygamy in their highest ranks well before this, with old J. Smith having his "revelations" about "celestial marriage" (polygamy) and taking on new wives starting around 1833. Could you direct me to your sources?

    This history of polygamy dogs the hierarchy to this day to the point that they call anyone practicing it an apostate and excommunicate them, even though their official beliefs have them practicing polygamy in the afterlife (to people new worlds, natch0. Double the hypocrisy then, but I'm sure Schaerr won't talk about how they have already redefined marriage as polygamy for their most worthy saints in the world to come.

  • 44. brandall  |  August 6, 2014 at 9:46 am

    You are correct about polygamy dating back to J. Smith. The church publicly declared the practice in 1852. Here's comes the odd part.

    I was a Mormon having joined the church at the age of 14. I went to BYU and then left the church. I remember being taught by the church that polygamy was instituted due to the depletion of men and a higher population of women. Part of this had to do with the Mexican American War and the "brave Mormon men." This was in the 70's. There was no wiki.

    So, now I need to search for what the church was saying versus the facts. Let me see what I can find.

  • 45. Deeelaaach  |  August 6, 2014 at 10:14 pm

    Brandall, I was also raised in the LDS church and was not taught that. I'm not saying you're lying though. I figure it might be the difference in congregation. I can never be sure that any of the non-doctrinal stuff I was taught is the same in other areas of the world. For example, my congregation taught that polygamy was only being withdrawn until the political situation allowed it to resume.

    What I am saying here is that non-doctrinal ideas might be the view of individual or groups of like minded members in positions to teach their views. Heck, the Bible has a lot of that in the New Testament – church leaders correcting individual congregations, so I don't think that idea is too far out there.

    In the end I can't speak to what you were taught. The only thing I can be certain of is that while I was raised in the church (70's and 80's), I was not taught what you were taught about polygamy and the Mexican American War. This leads me to wonder what else I was taught that was not taught elsewhere and vice versa.

  • 46. SeattleRobin  |  August 6, 2014 at 9:17 am

    I thought the info about the war was an interesting historical tidbit. But it seems kind of odd. The Mormons were in Illinois at that time and a fairly insular group, so it doesn't seem to fit that a large portion of the men would have been fighting in the war. Joseph Smith was a polygamist long before then. The starting point of 1852 was just when they stopped being secretive about it.

    More on topic, I don't recall for certain, but I think there were a few "traditional marriages" tossed in. But these guys are really fond of "child-centric" and "conjugal definition of marriage".

  • 47. FredDorner  |  August 6, 2014 at 8:15 am

    "They couldn't list a single law that indicates the purpose of marriage is children."

    No surprise that Schaerr chose not to mention the Utah law which specifically allows infertile 1st cousins to marry, thus gutting his procreation argument.

  • 48. sare99  |  August 6, 2014 at 6:34 am

    From Utah? Really?

    "and a woman who loves two men cannot marry them both."

  • 49. Dr. Z  |  August 6, 2014 at 7:52 am

    Don't forget – Utah allows cousins to marry if they CANNOT procreate.

  • 50. StraightDave  |  August 6, 2014 at 7:55 am

    …and ONLY if they cannot procreate.

    Procreators need not apply.

  • 51. brandall  |  August 6, 2014 at 8:36 am

    Before the Mormons redefined marriage to 1:1, they allowed siblings to marry. "In 1843, Joseph Smith's diary records the marriage of John Milton Bernhisel to his sister, Maria."

    Faulring, Scott H. (1987). An American Prophet's Record: The Diaries and Journals of Joseph Smith. Salt Lake City: Signature Books. ISBN 0-941214-55-9. Page 42.

  • 52. Mike_Baltimore  |  August 6, 2014 at 12:45 pm

    So when the Mormons stopped that practice, they redefined marriage. After all, marrying of siblings had been practiced in Pharonic Egypt, and such practices went on in Egypt for thousands of years.

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