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Gay Marriage Opponents Concerned Utah Appeal Might Be Dismissed Over Standing

Questions have being raised about standing in the 10th Circuit appeal of Kitchen v. Herbert, the ruling striking down Utah's ban on gay marriage, and some believe the court could dismiss the case because the proper defendants were not named in the suit.

SchaerrThe plaintiffs named the governor, the attorney general and the Salt Lake County Clerk in the case.

The Salt Lake Tribune reports:

On Tuesday, Utah’s lead counsel Gene C. Schaerr (pictured)  drew attention to a question posed to both sides by a three-judge panel at the 10th Circuit Court of Appeals last week regarding whether the lawsuit targeted the appropriate state and county officials...

...If the court finds that they’re not, the appellate judges may decline to rule in the case, leaving Judge Robert J. Shelby’s ruling to stand as law in Utah.

Questions from the court during arguments last week have led some to believe they are considering this, the paper adds:

During Utah’s arguments last week, Judge Jerome A. Holmes — widely considered to be the "vote to get" in the case — asked Tomsic to explain why the defendants her plaintiffs had singled out were appropriate.

Further, he asked whether the state continued to have the right to appeal the case, given that Salt Lake County Clerk Sherrie Swensen declined to appeal Judge Shelby’s Dec. 20 decision to overturn Utah’s same-sex marriage ban.

"You sued the clerk of court," Holmes said, referring to Swensen. "But the clerk of court is not on the appeal, and, it would seem to me that creates a fundamental basis for concern about where jurisdiction lies in this case. "

Schaerr insists that the officials named have standing to defend the case:

The explanation several Utah county clerks gave was they were waiting on direction from the attorney general or governor’s office as to how they should handle the situation.

This, Schaerr states in his letter to the court, is further proof that with or without the Salt Lake County clerk, the governor and the attorney general are within their jurisdiction to appeal the case to the 10th Circuit and, perhaps, beyond.

"Utah marriage licenses are issued by county clerks [...] not by court clerks," Schaerr wrote. "Plaintiffs’ suit thus satisfied the demands of Article III standing."

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...

Utah Moves To Block Gay Adoptions: VIDEO


While the fate of gay marriage in Utah remains unclear, so too does the status of adoptions of children by gay couples granted following Judge Robert J. Shelby’s decision back in December that struck down the Beehive State's ban on same-sex marriage. As Fox 13 News in Salt Lake City reports, the Utah Attorney General’s office has filed emergency petitions this week with the state Supreme Court, “asking the court to deny orders from judges who have already approved the adoptions”:

In one petition, the state argued that 3rd District Court Judge Elizabeth A. Hruby-Mills’ decision “authorizes the department to violate the plain text of the Utah Constitution and Utah law prohibiting recognition of same-sex marriage…”

They went on to say, “The trial court abused its discretion.”

DocsIn its arguments before the 10th circuit, Gene Schaer, the attorney representing the state of Utah, reiterated the argument made by the state in its brief filed for the court, that to confer marriage rights to same sex couples would be to change “the primary role of marriage from being child-centric to adult-centric.” The state’s brief against same-sex marriage suggested that to allow same-sex couples to marry in Utah would irreparably harm the state’s tradition of marriage (a sterling one, to be sure). 

Despite the hurdles, couples have been persistent in trying to ensure the state recognizes their adoption as legal and valid. Kimberly and Amber Leary were one of the first couples to marry when the ruling came down in December from Judge Shelby. After saying ‘I do,’ the Learys filed for second parent adoption like many other gay couples in the state. As Amber is the biological mother, only she is currently recognized as a legal parent of their daughter born in 2012. However, they’ve been fighting to change that. From Fox 13:

“This entire process has been celebration one day, crying the next, celebration one day, crying the next,” Kimberly Leary said.

Sitting in a waiting room at the Department of Health, she and her wife Amber Leary feel right at home.

“We’ve been here an hour...We’re going to get the birth certificate with both of our names on it,” Amber said. “That’s it, a piece of paper with both of our names on it saying that we’re her legal parents.” […]

Laura Gray, who represents the couple in Hruby-Mills’ case, spoke about the issue.

“They claim that they want to protect Utah’s children, but they are intentionally harming these children by injecting themselves into these cases,” Gray said. “We don’t understand why the Attorney General has to take this extraordinary step of now trying to undo completed adoptions.” [...]

“You just keep fighting, mostly for our child that she sees that, hey, we’re doing the right thing. We’re fighting for you; we’re fighting for us, for her constitutional rights,” said the Learys. 

Watch FOX13's report, AFTER THE JUMP...

Continue reading "Utah Moves To Block Gay Adoptions: VIDEO" »

Tenth Circuit 'Appears Divided' on Challenge to Utah Gay Marriage Ban

Plaintiffs following the hearing via Chris Johnson Twitter.

As we reported earlier, a three-judge panel at the Tenth Circuit Court of Appeals in Denver today heard arguments in Kitchen v. Herbert, the case challenging Utah's gay marriage ban.

The AP has an early take:

One of the judges, Carlos F. Lucero, compared the state's argument that the ban should to the U.S. Supreme Court's infamous Dred Scott decision that denied citizenship and constitutional protections to blacks before the Civil War. "To argue that public policy can trump a declared constitutional right would be a remarkable proposition," Lucero said.

But Judge Paul J. Kelly Jr. suggested Utah does have the right to reaffirm what has been a centuries-long tradition of heterosexual marriage. "You are just taking the position they are wrong on this. .... We'll just ignore what the people have decided and the Legislature has done," Kelly said.

The swing vote in the case appears to be justice Jerome A. Holmes, who sharply challenged attorneys for both sides.

More from the Denver Post:

Gene Schaer, the attorney representing the state of Utah, told justices a key risk of gay marriage is that children are raised by someone other than their natural parents and that those children have a higher rate of criminal behavior .

He said it also changes the primary role of marriage from being child- centric to adult-centric.

Peggy Tomsic, a lawyer at the private Salt Lake City firm of Magleby & Greenwood who argued for the plaintiffs released a statement through NCLR:

“We are grateful that the Tenth Circuit has moved quickly in handling this appeal, which affects thousands of families in Utah who seek equal dignity and full legal recognition of their families. We are confident that the judges will give this important case the consideration it deserves, and we look forward to the court’s decision.“

More to come as this develops...

Utah Distances Itself from Anti-Gay Activist Research Mark Regnerus in 10th Circuit Letter


The State of Utah filed a letter to the Tenth Circuit court yesterday ahead of today's hearing on the Utah gay marriage ban distancing itself from discredited UT research Mark Regneres and his flawed parenting study which was recently cited to disastrous results in the Michigan gay marriage case.

Says the letter: Regnerus

Utah files this supplemental letter in response to recent press reports and analysis of the study by Professor Mark Regnerus, which the State cited at footnotes 34 and 42 of its Opening Brief, and which addresses the debate over whether same-sex parenting produces child outcomes that are comparable to man-woman parenting.

First, we wish to emphasize the very limited relevance to this case of the comparison addressed by Professor Regnerus. As the State’s briefing makes clear, the State’s principal concern is the potential long-term impact of a redefinition of marriage on the children of heterosexual parents. The debate over man-woman versus same-sex parenting has little if any bearing on that issue, given that being raised in a same-sex household would normally not be one of the alternatives available to children of heterosexual parents.

Second, on the limited issue addressed by the Regnerus study, the State wishes to be clear about what that study (in the State’s view) does and does not establish. The Regnerus study did not examine as its sole focus the outcomes of children raised in same-sex households but, because of sample limitations inherent in the field of study at this point, examined primarily children who acknowledged having a parent who had engaged in a same-sex relationship. Thus, the Regnerus study cannot be viewed as conclusively establishing that raising a child in a same-sex household produces outcomes that are inferior to those produced by man-woman parenting arrangements.

Think Progress notes:

During the district court trial, Utah cited Regnerus to suggest that the debate on same-sex parenting was inconclusive and thus should not be trusted. Judge Robert Shelby dismissed that argument, making essentially the same point Utah concedes in this letter: promoting parenting by different-sex couples has no connection to banning same-sex couples from marrying.

In appeals briefs, Utah officials have indeed focused more on different-sex parenting. For example, they have argued that banning same-sex marriage promotes “diversity” in parenting and helps protect birth rates from declining. Still, they have also continued to argue that same-sex parenting would be a threat to children’s well-being.

By focusing so much on the state’s “powerful interest in parenting by heterosexuals,” Utah’s briefings have actually attempted to paint heterosexuality as superior instead of homosexuality as inferior — arguably, a distinction without a difference.

Here is some excellent background if you want a preview of today's Utah hearing.

Ari Ezra Waldman: What To Watch For in Today's Tenth Circuit Court Marriage Hearing on the Utah Gay Marriage Ban; and,

Lisa Keen: Tenth Circuit to Hear Challenge to Utah's Gay Marriage Ban Tomorrow: A Preview of the Players

Watch a preview of the suit from the AP, AFTER THE JUMP...

Continue reading "Utah Distances Itself from Anti-Gay Activist Research Mark Regnerus in 10th Circuit Letter" »

What To Watch For in Today's Tenth Circuit Court Marriage Hearing on the Utah Gay Marriage Ban


TenthcircuitThe Denver-based Tenth Circuit Court of Appeals (pictured) is hearing arguments today in Kitchen v. Herbert, the federal case challenging Utah's ban on gays marrying. It is the first in a line of nearly 65 marriage lawsuits speeding their way through the federal and state judiciaries and, therefore, may be the one case to reach the Supreme Court and be the vehicle to determine whether we have a nationwide right to marry.

In December of last year, Judge Richard Shelby issued a broad ruling, holding that marriage discrimination violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It was the first same-sex marriage ruling after the Supreme Court's decision in Windsor and Judge Shelby relied heavily on that pivotal case. In fact, he seems to have set the tone for how the lower federal courts are interpreting and using Windsor. Shelby himself found that Windsor required some level of scrutiny higher than simple rational basis; other courts have found that it demanded heightened review. All courts have essentially found that Windsor made marriage discrimination pretty much untenable. 

It was, then, the second domino after Windsor.

There are a few things to watch for in this closed-door hearing.

1. Will the court issue a ruling as broad as Judge Shelby's or limit it in some way?

2. What, if anything, does the court say about the required level of scrutiny in antigay discrimination cases?

3. Will the political backgrounds of the judges play a role in their decision making?

Let's turn to each of this questions briefly AFTER THE JUMP.

Continue reading "What To Watch For in Today's Tenth Circuit Court Marriage Hearing on the Utah Gay Marriage Ban" »


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