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

BY LISA KEEN / Keen News Service

The Tenth Circuit U.S. Court of Appeals this week will become the second federal appeals court to tackle the question of whether statewide laws banning same-sex couples from marrying violate the U.S. Constitution.
The Denver-based court will hear oral arguments Thursday, April 10, at 10 a.m. MDT in the Utah same-sex marriage case Herbert v. Kitchen.

ShelbyBy order of the court, there will be no audio or video recording, broadcasting, photography, blogging, tweeting, emailing or any other broadcast mechanism or wireless communication anywhere in the courthouse during oral arguments.

In that crowded courtroom, a three-judge panel will scrutinize the decision last December of U.S. District Court Judge Robert Shelby (pictured, an Obama appointee). Shelby ruled that the state constitution’s definition of marriage as being only between “a man and a woman” is not permissible under the U.S. Constitution. He said the law’s prohibition of same-sex couples marrying violates the due process and equal protection guarantees of the U.S. Constitution. He said the ban denies gay and lesbian citizens their “fundamental right to marry and, in doing so, demean[s] the dignity of these same-sex couples for no rational reason.”

While this case is the first to reach a federal appeals court since the Ninth Circuit heard Brown v. Perry in 2012, it is just one of almost a dozen that have reached the federal appeals level. They are spread across five circuits. The Utah Kitchen case is a pacesetter at the moment. And here’s a look at the players in Thursday’s hearing:

TenthcircuitThe judges: The three-judge panel tasked with hearing the appeal includes two Republican and one Democratic appointee.

Judge Paul Kelly (an appointee of President George H.W. Bush) is considered conservative.

Judge Carlos Lucero (a Clinton appointee) is considered liberal. But both judges voted with the majority at the Tenth Circuit in the Hobby Lobby v. Sebelius case. They said the owners of the retail store were allowed, under the federal Religious Freedom Restoration Act and the First Amendment free exercise clause, to cite their religious beliefs in order to deny contraceptive services in their health plans under the Affordable Care Act.

Judge Jerome Holmes (a George W. Bush appointee) is the wild card. He was recused from the Hobby Lobby case. He was one of two judges in the Tenth Circuit to deny an emergency request from the state of Utah to stay a district court decision pending appeal. They said a stay was “not warranted.”

The attorneys: Attorneys for the two parties in the case – the state of Utah and the plaintiff couples—have 30 minutes each to present their arguments.

TomsicPeggy Tomsic, a lawyer at the private Salt Lake City firm of Magleby & Greenwood, will be presenting arguments for the plaintiff couples. According to the Salt Lake City Tribune, Tomsic asked her life partner Cindy Bateman to marry her shortly after Shelby issued his decision. She and her law firm partner Jim Magleby (straight and married) are known for taking on large, complicated cases. Most recently, they won a $134 million award against PacificCorp, one of the leading utility companies on the west coast.

SchaerrGene Schaerr, who was hired by the state attorney general’s in January specifically to lead Utah’s defense of the marriage ban, will argue for the state and Governor Gary Herbert. Schaerr resigned his partnership at a private law firm to become Special Assistant Attorney General for Utah. In a memo to his firm upon his departure, Schaerr said he was leaving to “fulfill what I have come to see as a religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and where most of my family resides.” Schaerr has been a sometimes contributor to the Mormon magazine Meridian, including an article urging opposition to a marriage equality ballot measure in Maryland in 2012.

KitchenThe plaintiffs:

The three plaintiff couples are Derek Kitchen and Moudi Sbeity (pictured), who have not yet married; Laurie Wood and Kody Partridge, who married in Utah during the brief window of opportunity this year; and Kate Call and Karen Archer, who obtained a marriage certificate in Iowa.

The organizer behind the lawsuit is Mark Lawrence, director of Restore Our Humanity, a group established specifically to mount this lawsuit. According to a profile in the Salt Lake City Tribune, Lawrence, an information technology specialist who lives with his parents to care for his father who has Alzheimer’s, was inspired by the Proposition 8 lawsuit to tackle something similar here.

After Thursday’s hearing, the 10th Circuit has also scheduled oral arguments in another marriage equality case: Bishop v. Smith out of Oklahoma. That will be on April 17.

On May 12, the Fourth Circuit U.S. Court of Appeals will hear oral argument in Bostic v. Schaeffer, a case led by Ted Olson and David Boies for the American Foundation for Equal Rights and a team of attorneys against Virginia’s ban.

The Sixth Circuit has four marriage equality appeals pending before it, and one of those, Michigan, just asked the court to skip over the three-judge panel phase and go directly to a full “en banc” review. If the Sixth Circuit agreed, that could enable the Michigan case to reach the U.S. Supreme Court before Utah. But getting to the high court first does not guarantee the justices will choose that case to decide the issue at stake in all these cases: whether states can deny same-sex couples the right to marry.

© 2014 Keen News Service. All rights reserved.

More on this case soon from our legal editor Ari Ezra Waldman...

Utah Theatre Director Zaps Homophobic Patron Upset Over Gay Kiss in Play: VIDEO


Chris Lino — the managing director of The Pioneer Theater Company on the campus of the University of Utah in Salt Lake City, Utah — recently staged a production of the comedic thriller Deathtrap during which (SPOILER ALERT) one character kisses another of the same gender on the cheek for all of three to four seconds.

The kiss was enough to send one audience member into full-blown histrionics, and she sent Lino the following letter:

Chris [Lino, Managing Director],

I trusted you! I have been a season ticket holder for 10 years and in the past have appreciated the quality of the acting and set design. I love the theatre and have taken my children to the theatre in hopes that they too will love it and continue to support the ARTS.

Pioneer_theatre_companyI am normally calm, mild-mannered, and don’t get upset, but last night, at the close of the first act of Deathtrap, I was infuriated with the explicit, homosexual display on stage because I had brought my teenage son to see the seemingly innocuous play. I based my decision to take my teenage son upon the content advisory you provided. In the past, I have appreciated the content advisories, and I have relied upon them to make attendance decisions. I realize that, unfortunately, you feel you must appeal to an insignificant minority of patrons by offering “edgy” material. I regret that you feel that way. I have wasted many tickets the last two years by choosing NOT to attend plays that were offensive and vulgar.

Because I relied on the content advisory, I am infuriated this evening. I felt compelled to walk out immediately, but had been taught etiquette as a child (my seat is [REDACTED]). It took all of my self control as I fumed in my seat for the long minute before intermission. Why was brazen homosexual content not included in the advisory?

As I left at intermission, I talked to your employees in the ticket booth asking for upper management, but you were not available. When I inquired as to why that content was left out of the advisory I was told that it would “ruin the plot.” Ruin the plot?! You ruined my evening, ruined my trust in you, and you ruined the trust my son has in me to find worthwhile entertainment for him. I feel sick about tonight.

I am appalled that you could not have simply stated: homosexual content. I have NEVER been so disgusted and infuriated! I was livid. I know your ticket sales clerk and manager are not responsible, and they handled the situation well. I had read and reread the content advisory to make sure it would be suitable to have my teenage son attend. I anticipated that he would appreciate the suspense, intrigue, plot twists, and mystery. The decision on the theatre’s part not to divulge repulsive content was irresponsible and negligent! You have that responsibility to your patrons.

Please refund my money for this last evening’s performance as well as Sweet Charity as we will not be using our tickets. Thank you in advance. My real desire is that you could erase the images in my son’s mind and in mine. Please send my refund to: [REDACTED]

I hope my feedback will prompt you to include ALL potentially offensive content in the advisory in the future!

Read Lino’s excellent response and a report for SLC FOX13, AFTER THE JUMP…

Continue reading "Utah Theatre Director Zaps Homophobic Patron Upset Over Gay Kiss in Play: VIDEO" »

Justin Utley Tells Utah Lawmakers a Thing or Two About Discrimination in Emotional Speech: VIDEO


Utah native and singer-songwriter Justin Utley survived "ex-gay" therapy after coming out to his Mormon bishop, then lost his boyfriend unexpectedly of a heart attack and was fired from his job after his boss found out he was gay.

He appeared before Utah lawmakers last month, the Advocate reports:

The meeting, which was co-sponsored by Democratic Senator Jim Dabakis and Republican Senator Steve Urquhart, marked the first time some of the state’s lawmakers had ever officially met with LGBT people.

Said Utley: "There is a spoke in this wheel of diversity in this state that needs to be fixed... today, most transgender and gay Utahns are not only bringing a briefcase to work, but they're also bringing a closet. I'm here because I am still a proud Utahn born and raised with these values: compassion, optimism, that Utah is a place where every person has the same opportunity to earn a living free from discrimination."


Continue reading "Justin Utley Tells Utah Lawmakers a Thing or Two About Discrimination in Emotional Speech: VIDEO" »

Amicus Briefs Pile in for Federal Appeals Court Challenges to Gay Marriage Bans in Oklahoma and Utah

The 10th Circuit Court of Appeals is considering cases challenging gay marriage bans in Oklahoma and Utah and midnight on Tuesday was a deadline for groups to submit amicus briefs in the case.

OklahomaThe court has been overwhelmed, the AP reports:

More than 50 groups, organizations and coalitions have weighed in on gay marriage cases in Utah and Oklahoma (plaintiffs Mary Bishop and Sharon Baldwin, pictured right) with supporting court briefs – giving a Denver-based federal appeals court thousands of pages of arguments to consider.

A total of 27 friend of the court briefs urging the court to make gay marriage legal in the two states were submitted before the Tuesday midnight deadline. In addition to a group of Western Republicans and national associations of sociologists and psychologists, a brief was sent in by a conglomerate of 46 companies including Starbucks, Pfizer, eBay, Facebook, Google and Levi Strauss.

SchneidermanAlso among those filing amicus briefs - 14 state attorneys general. Among them was NY Attorney General Eric Schneiderman, who sent this press release:

Attorney General Eric T. Schneiderman has joined 14 other state attorneys general in filing an amicus brief in an appeal of the successful challenges to laws prohibiting same-sex marriage in Utah and Oklahoma. The multi-state brief, led by Massachusetts Attorney General Martha Coakley, counters arguments made by those states in defense of their restrictive marriage laws, and presents the experiences of states where same-sex marriage is legal or will soon be legal.

The brief presents arguments in support of the right of same-sex couples to marry and observes that the institution of marriage remains strong and thriving in states where marriage equality is the law. The brief was filed in connection with two cases: Kitchen v. Herbert and Bishop v. Smith. The filing is consistent with Attorney General Schneiderman’s long commitment to ensuring marriage equality. The filing also follows an amicus brief filed with the Supreme Court last year in United States v. Windsor, in which Attorney General Schneiderman successfully argued that the Defense of Marriage Act violated the U.S. Constitution.

You can read the brief from the attorneys general here.

KaplanIn related news, Equality on Trial reports that a request to intervene in the Utah case has been rejected:

Three same-sex couples who had previously filed a request to intervene in Kitchen v. Herbert, the Tenth Circuit appeal of the challenge to Utah’s same-sex marriage ban, recently asked the Tenth Circuit for the opportunity to participate in the oral arguments on April 10.

Their earlier request was filed by Roberta Kaplan, who argued at the Supreme Court on behalf of Edith Windsor that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional. This follow-up request was also filed by Kaplan, who’s representing these couples pro bono.

But the Tenth Circuit has rejected this new request, just as it did the previous one, with no comment.

Oral arguments in the Utah case are scheduled to go before the court on April 10.

Plaintiffs in Legal Challenge to Utah's Gay Marriage Ban Get Engaged: VIDEO


Derek Kitchen and Moudi Sbeity, the plaintiffs in Kitchen v. Herbert, the legal challenge to Utah's ban on same-sex marriage which is now before the 10th Circuit, got engaged over the weekend at the Equality Ball held at the Hotel Monaco in Salt Lake City.

Watch the charming moment, AFTER THE JUMP...


Continue reading "Plaintiffs in Legal Challenge to Utah's Gay Marriage Ban Get Engaged: VIDEO" »

Utah Brewery Offering 'Live and Let Live' Ale to Show Support for Equality, Diversity

WasatchA Park City, Utah-based brewery is showing its support for marriage equality with a new beer made from two similar ingredients, the Salt Lake Tribune reports:

Called Live and Let Live, the blonde pale ale was produced using "two beautiful malts and two wonderful hops, all fermented with a pair of yeasts," says Wasatch brewer Dan Burick.

The beer is 4 percent alcohol by volume — that’s 3.2 by weight — and will be available on draft beginning Friday, Valentine’s Day. (See list for specific locations.)

The gray-toned label that customers will see on the tap handle shows what looks to be a couple — possibly two men, maybe two women — in orange parkas embracing as they ride a ski lift.

Writes the brewery on Facebook:

Celebrate diversity in Utah! Live and Let Live.

“Our new beer has an attitude and we believe Live and Let Live will make life better for a lot of people in Utah" says Wasatch founder Greg Schirf. “Some of our political leaders would benefit from a hearty serving of Live and Let Live.”

Live and Let Live is a blonde pale ale built with two beautiful malts and two wonderful hops, all fermented with a pair of yeasts. This will be available on Valentines Day!

The brewery says that the beer is only on tap:

We wanted to get this out while the legislative session was going and didn't have enough time to get it in bottles.

Where to find Live and Let Live on Tap Valentine’s Day if you're in Utah, AFTER THE JUMP...

Continue reading "Utah Brewery Offering 'Live and Let Live' Ale to Show Support for Equality, Diversity" »


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