Beginning Next Week: Tenth Circuit to Hear Utah, Oklahoma Marriage Equality Cases

by Charles Joughin

Two of the nine cases slated for argument before federal appeals courts to be heard in Denver this month

WASHINGTON – As the national spotlight on marriage grows ever brighter and polling continues to show Americans moving inexorably in the direction of supporting equality for same-sex couples, appeals on two cases challenging state constitutional marriage bans will be heard by the U.S. Court of Appeals for the Tenth Circuit in Denver this month.  On Thursday, April 10th– barely a year after being filed in federal court in Utah – Kitchen v. Herbert will go before a three-judge panel that will consider a judge’s December ruling that struck down the state’s ban on marriage equality.  One week later on Thursday, April 17, the judges will preside over a similar case out of Oklahoma, Bishop v. United States, which challenges that state’s marriage ban after a federal judge ruled it unconstitutional in January of this year.

On Monday the Tenth Circuit named the three judges who will hear Utah’s Amendment 3 appeal. Judge Paul Kelly Jr. was nominated by President George H.W. Bush and was confirmed to the Tenth Circuit in 1992.  Judge Carlos Lucero was nominated by President Bill Clinton and confirmed to the appeals court in 1995. And Judge Jerome Holmes was nominated by President George W. Bush and confirmed in 2006.  Judge Holmes was one of two judges who denied Utah’s request for a stay on same-sex marriages underway in Utah after a district judge ruled the state’s marriage ban unconstitutional. 

The Tenth Circuit is one of five federal appeals courts that will preside over nine marriage equality cases in the coming weeks and months.  Other cases that will go before circuit courts include: Sevcik v. Sandoval of Nevada in the Ninth Circuit, DeLeon v. Perry out of Texas in the Fifth Circuit, Bostic v. Rainey of Virginia out of the Fourth Circuit, and four cases out of the Sixth Circuit - Tanco v. Haslam of Tennessee, Bourke vs. Beshear of Kentucky, Obergefell v. Kasich of Ohio, and DeBoer v. Snyder of Michigan.  The Sixth Circuit holds the distinction of being the only federal appeals court to date that will consider marriage cases from all states within its jurisdiction.

Presently there are at least 55 marriage equality court cases working their way through the judicial system across the country.  These cases have been filed in 28 states plus Puerto Rico and account for nearly 250 plaintiffs taking on state marriage bans.  Same-sex couples can legally marry in seventeen states and the District of Columbia, while 33 states have a law or constitutional amendment restricting marriage to the union of one man and one woman.  Only five states – Alaska, Georgia, Montana, North Dakota and South Dakota – have bans on marriage equality but no current court cases challenging their constitutionality.

On December 20, 2013, U.S. District Judge Robert Shelby ruled that Utah’s ban on marriage equality is unconstitutional “because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution.”  Over the weeks that followed more than 1,300 same-sex couples were legally married in Utah before the U.S. Supreme Court granted a stay pending final disposition of the appeal by Tenth Circuit.  The case was initially filed on March 25, 2013 on behalf of three same-sex couples, one of which was legally married in Iowa but sought for Utah to recognize their marriage.

On January 14, 2014, U.S. District Judge Terence Kern ruled that Oklahoma’s ban on marriage equality is unconstitutional.  His ruling was stayed pending appeal, meaning marriages did not occur immediately in the Sooner State.  Two plaintiff couples, Mary Bishop and Sharon Baldwin and Gay Phillips and Susan Barton, filed their case, Bishop v. Oklahoma, in the U.S. District Court for the Northern District of Oklahoma in November 2004.

In June of last year, the U.S. Supreme Court ruled on two landmark marriage cases – Hollingsworth v. Perry and United States v. Windsor.  In the Perry decision regarding California’s marriage ban – Proposition 8 – the Justices returned marriage equality to California, ruling on procedural grounds, not reaching a decision on the merits of Prop 8 or the broader question of whether the Constitution guarantees the fundamental right to marry the person you love.  In Windsor, the Court struck down Section3 of the Defense of Marriage Act (DOMA), which carved all same-sex couples, regardless of their marital status, out of all federal statutes, regulations and rulings applicable to all other married people—thereby denying them over 1,100 federal benefits and protections.  Since the Supreme Court ruled in Perry and Windsor, not a single state marriage ban has survived a federal court challenge. These rulings on the merits in the marriage cases have occurred in three state courts and eight federal district courts since the Supreme Court’s decision last June. 

Here’s the latest schedule of oral argument in key appellate cases this spring:
Kitchen v. Herbert, Utah, Tenth Circuit: April 10th
Bishop v. Smith, Oklahoma, Tenth Circuit: April 17th
Bostic v. Schaefer, Virginia, Fourth Circuit: May 13th
Note: The first filings in Love v. Beshear (Kentucky) and Tanco v. Haslam (Tennessee), both in the sixth circuit, are due on May 7th. Oral arguments have not been set yet.

The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.


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