TODAY: Tenth Circuit to Hear Argument in Utah Marriage Case

by Charles Joughin

Kitchen v. Herbert on appeal after judge ruled Utah same-sex marriage ban unconstitutional

Today, barely a year after being filed in federal court and just months after a ruling by that court, a challenge to Utah's ban on marriage equality, Kitchen v. Herbert, will be heard by a three-judge panel of the United States Court of Appeals for the Tenth Circuit. Next week, on Thursday, April 17, the same panel will preside over a similar case out of Oklahoma, Bishop v. United States.

"For the first time since the Supreme Court's landmark marriage rulings last year, a federal appeals court will soon be asked to decide whether states can continue discriminating against same-sex couples by denying them the right to marry,” said Human Rights Campaign (HRC) President Chad Griffin.  “For far too long committed and loving gay and lesbian couples have been forced to jump over unnecessary legal hurdles to provide for themselves and their families.  These unconstitutional bans on marriage equality are a stain on the fabric of American society and should be struck down once and for all."

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.

Yesterday the Utah Attorney General’s office submitted a filing to the Tenth Circuit completely distancing itself from the specious arguments it had previously made regarding parenting by same-sex couples.  In previous briefs, the state cited a study by Professor Mark Regnerus claiming that same-sex couples make far inferior parents than opposite sex couples.  However, that study has been roundly lambasted, most recently by a federal judge from Michigan, who said Regnerus’ testimony was "entirely unbelievable and not worthy of serious consideration."

The U.S. Court of Appeals for the Tenth Circuit has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. Presently there are at least seven marriage equality cases in states within the Tenth Circuit that ban marriage equality. Some of the cases were filed in state courts, while the others were filed in federal courts.  New Mexico is the only state within the circuit, after the New Mexico Supreme Court ruled on December 19, 2013, that same-sex couples in the state had the right to marry. The decision took effect immediately.

Click here to learn more about the cases before the Tenth Circuit. 

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. Kasichof 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 58 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.

In June of last year, the U.S. Supreme Court ruled on two landmark marriage cases –Hollingsworth v. Perry and United States v. Windsor, returning marriage equality to California and striking down key sections of the Defense of Marriage Act (DOMA).   Since then, 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.  

Learn more about this and other marriage equality cases at

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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