USA, Utah: Could Marriage Equality Case Be Dismissed Over Standing Issues?

Written by scott on April 19th, 2014

Tenth Circuit, Denver

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After worries surfaced that the Oklahoma marriage equality lawsuit at the Tenth Circuit could be dismissed, similar worries have come up over the Utah lawsuit, also at the Tenth Circuit. reports:

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… 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.”

Marriage equality cases seem to regularly involve standing issues – is it because there is something inherent in the fight for marriage equality. or is this just a standard tool of the opposition to try to derail them?

Find more articles and gay wedding resources in Utah.


3 Comments so far ↓

  1. Stephen Herman says:

    Is this standing issue a real concern at this point or just speculation?

  2. Matt Kleid says:

    Standing is frequently used as a means to dodge substantial questions.

  3. Ned Flaherty says:

    Standing is often used, in 5 ways:
    1. by one side to delay the other side;
    2. by defendants to avoid having to defend;
    3. by defendants to have a plaintiff’s case dismissed;
    4. by appellants to have an appellee’s case dismissed;
    5. by judges who prefer to rule only on a technicality instead of on the actual merits.

    For the UT case, the plaintiffs (now appellees) always had standing; if the defendants (now appellants) are found to lack standing, then the appeals court would decline to rule, the district court outcome would remain intact, and the plaintiffs would be victorious.

    For the OK case, the in-state marriage rights plaintiffs (now appellees) certainly have standing but the out-of-state marriage plaintiffs might not; the defendants (now appellants) also certainly have standing.

    If the out-of-state OK marriage plaintiffs are found to lack standing, then their own claim will get dismissed; however, if the appeals court upholds the earlier ruling overturning the in-state marriage ban, then the out-of-state marriage ban would probably get overturned at the same time, and for the same reasons.

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