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More on Today's Hearings at the Tenth Circuit on Utah's Gay Marriage Ban, Plus Full Audio

For those of you interested in listening to the full Tenth Circuit Court hearing of today's arguments in Kitchen v. Herbert, the case challenging Utah's gay marriage ban, there is an audio recording HERE.

TenthcircuitWe reported a bit on the hearings earlier, and Chris Johnson has a bit more at the Washington Blade.

Here are Johnson's takes on the three judges:

Judge Carlos Lucero, a Clinton appointee, appeared most inclined to rule against Utah’s ban on same-sex marriage. Noting the string of recent court decisions against similar bans, the judge expressed concern about children being raised by same-sex couples and wondered why a straight couple would be more likely to get married if gay couples were banned from marriage.

Lucero placed considerable emphasis on U.S. Associate Justice Anthony Kennedy’s decision against the Defense of Marriage Act, saying the “expositive language” of the ruling “disavowed a decision predicated on federalism” allowing states to ban same-sex marriage.

...Judge Jerome Holmes, appointed by President George W. Bush, also seemed critical of the marriage ban. Holmes, who’s black, asked why bans on same-sex marriage shouldn’t be struck down because they affect a certain category of individuals — much like the 1969 Loving v. Virginia decision striking down interracial marriage bans.

...Paul Kelly, an appointee of President George H.W. Bush, seemed most inclined to uphold Utah’s ban on same-sex marriage. Several times, he invoked the prerogative of Utah voters to define marriage through the democratic system without being overruled through the judicial process. At one point, he questioned why the court shouldn’t also require polygamous marriages in Utah if it were to require same-sex marriages, saying, “It seems like it all goes together.”

Read his full report at the Blade...

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Comments

  1. I think people are missing the big picture. We aren't winning these things in really liberal states but in the reddest of the red. I mean its UTAH! So if Utah falls its their last stand IMO.

    Funny how Iowa had it before California. That's when I knew it was only a matter of time. I mean when Iowa is more progressive than Cali or NY things are changing.

    Anyway. IMO, the judges will tactfully rule in our favor in some way for fear of this getting to the Supremes. I don't think they want anything else going that far and becoming a national decision

    Posted by: Homo Genius | Apr 10, 2014 9:35:21 PM


  2. @HOMO GENIUS This will get appealed to the Supreme Court no matter which side wins

    Posted by: anon | Apr 10, 2014 9:44:24 PM


  3. I cant believe the comments from judge kelly, the conservative one. Polygamy? Really? Has he even heard that Massachusetts has had marriage equality for over ten years, as has Canada, and no polygamy there?

    Both opinions and dissent will have to be at least respectful to our side, though, because their jurisdiction includes New Mexico. There, the supreme court overturned their ban, so a circuit court cant really call them spawn of satan.

    Posted by: Randy | Apr 10, 2014 9:59:35 PM


  4. @Randy. Actually the NM supreme court didn't over turn a ban on gay marriage, such a law was never passed. NM was unique, in that the state constitution or marriage statue did not specify that a marriage was between one man and one woman. Therefore the NM supreme court just ruled in favor of our state constitution. And hopefully, all other courts will rule in favor of our national constitution.

    Posted by: NMSam | Apr 10, 2014 10:18:26 PM


  5. Justice Kelly should brush up on his history...the US required the Territory of Utah to outlaw polygamy as a condition of statehood. Consequently, one of Brigham Young's (many, many) children had a 'revelation' and poof! No more sanctioned polygamy.

    He may be on to something.. polygamy is alive and well in Utah despite the official ban, and honestly, who cares? It surely doesn't affect my relationship. As long as these folks aren't on the dole, what's it to anyone?

    Posted by: Burt | Apr 10, 2014 10:39:14 PM


  6. There's no doubt that the case will be appealed to the Supreme Court, but the Tenth Circuit may want to write their decision in such a way as to discourage the Supremes from taking it up. This was the path taken by the Ninth in its review of Judge Walker's decision in California.

    Personally, I have no problem with polygamous households. Perhaps Justice Kelly's concern is that a polygamous marriage necessarily involves at least two participants of the same sex.

    Posted by: Rich | Apr 10, 2014 10:49:06 PM


  7. Given that this is Utah, where polygamy existed long before there was any thought of gay couples marrying, it's truly bizarre that the judge would raise it here, especially since polygamy has a thoroughly heterosexual history. Polygamy, whatever one thinks of it, raises different issues than those involved in two-person marriage, and it's not at issue in this case. No wonder one of the other judges was like, WTF?

    Posted by: Ernie | Apr 10, 2014 11:08:28 PM


  8. "Seems like it all goes together" ?? Seriously at this point in time? How asinine.

    Posted by: Lexis | Apr 11, 2014 3:09:18 AM


  9. Well there's always got to be that one conservative judge thrown into the mix there. But this way the right-wingers can't claim they didn't have anyone representing their viewpoint and we get to see how loony their arguments are when contrasted to more rational thinking AND precedent.

    Posted by: SpaceCadet | Apr 11, 2014 8:47:55 AM


  10. Well there's always got to be that one conservative judge thrown into the mix there. But this way the right-wingers can't claim they didn't have anyone representing their viewpoint and we get to see how loony their arguments are when contrasted to more rational thinking AND precedent.

    Posted by: SpaceCadet | Apr 11, 2014 8:47:56 AM


  11. Paul Kelly is a Circuit Court judge and he's talking about slippery slope arguments? He's trying to make the arguments for defense? Sounds to me like an "activist" judge.

    Posted by: Richard Harney | Apr 11, 2014 2:34:08 PM


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