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Tenth Circuit Rules Oklahoma Marriage Equality Ban Unconstitutional

Friday, July 18th, 2014

Oklahoma Marriage Equality Case in Legal LimboThe same panel that found Utah’s ban on same sex marriage unconstitutional just struck down the Oklahoma marriage equality ban.

The Advocate reports:

The U.S. Court of Appeals for the Tenth Circuit ruled Friday that Oklahoma’s ban on marriage equality is unconstitutional, and that couples should be able to wed. This is the second time a three-judge panel from the Denver-based court has found that a state’s ban is unconstitutional. In June, the same panel came to the same conclusion around Utah’s ban on same-sex marriage. According to the Associated Press, Friday’s ruling is the first time a federal appellate court ruled that the Supreme Court’s 2013 ruling striking down a section of the Defense of Marriage Act also meant that states could not deny same-sex couples the right to marry. As of now, marriages for same-sex couples both in Oklahoma and Utah will remain on hold. This is the 26th consecutive federal or state court ruling to come down on the side of marriage equality since the Windsor ruling in June 2013.

Woohoo! Closer and closer to the US Supreme Court…

Find more articles and gay wedding resources in Oklahoma.

Utah Marriage Equality Advanced By 10th Circuit Ruling

Saturday, July 12th, 2014

Utah MapThe Tenth Circuit just ruled in favor of granting benefits to same sex couples married after the state’s ban was struck down.

LGBTQ Nation reports:

More than 1,000 gay and lesbian couples who married in Utah after the state same-sex marriage ban was overturned could get benefits in 10 days after a favorable ruling from a federal appeals court. Five months after the ban was struck down, a different federal judge in May ruled the state must lift its ban on benefits – such as child custody – for same-sex couples. The state asked the 10th Circuit Court of Appeals to delay the benefits while the larger issue of the marriage ban makes its way through the courts. On Friday, the 10th Circuit denied Utah’s request for an indefinite delay. Instead, justices gave them until July 21 to ask the U.S. Supreme Court to weigh in.

So if the Supremes don’t step in, same sex couples married in Utah will be entitled to full benefits from the state on July 21st.

Find more articles and gay wedding resources in Utah.

Analysis of the Tenth Circuit Utah Marriage Equality Decision

Wednesday, July 2nd, 2014

Utah MapTo regular Towleroad readers, Judge Lucero’s opinion holding Utah’s ban on same-sex marriage unconstitutional reads like so many other equality rulings in the post-Windsor world. But the June 25th decision is still remarkable and unprecedented. Kitchen v. Herbert did not just say banning gays from marrying is unconstitutional. Rather, it said the law is unconstitutional specifically because of Windsor.

The opinion has all the trappings of many of the district court decisions that preceded it. First, the Court addressed the standing of the parties (the Governor and Attorney General of Utah) to appeal. I won’t spend any time on that section except to say, they do have standing. Second, the court dispatched the Baker v. Nelson canard. As courts have argued countless times in the last 4 years, a 1971 order by the Supreme Court saying that a gay marriage lawsuit does not raise any federal question is outdated and no longer good law in the post-Romer, post-Lawrence, and post-Windsor universe.

But the way the Baker argument got resolved was new. Utah, which was represented in Court by my old boss at Winston & Strawn LLP, Gene Schaerr, argued that the very principles of federalism and the separation between the federal government’s role and the role of state governments that were reaffirmed in Windsor mandate that the Tenth Circuit hold to the Baker dismissal. In other words, Utah was acknowledging that the world has changed since 1971, a concession that the Prop 8 proponents and those supporting the Virginia gay marriage ban have refused to make. However, despite those cataclysmic changes, Utah argued that Windsor reminds us of the danger of the federal government intruding into the exclusive realms of the state. Therefore, since marriage is traditionally a state issue, the federal judiciary should stay out of a state’s decision to discriminate against gays in that exclusive state matter.

Authored By Ari Ezra Waldman – See the Full Story at Towleroad.com

Find more articles and gay wedding resources in Utah.

Utah Marriage Equality Ban Struck Down By Tenth Circuit

Wednesday, June 25th, 2014

Utah MapIt’s shaping up to be a big marriage equality day – the Tenth Circuit just upheld the decision against the Utah marriage equality ban.

Equality on Trial reports:

The Tenth Circuit Court of Appeals has affirmed the district court’s ruling that Utah’s same-sex marriage ban is unconstitutional. From the opinion: “We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm.” They have issued a stay.

Wow – is this the first circuit decision since Windsor and Prop 8 at the Supreme Court last year?

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

Saturday, April 19th, 2014

Tenth Circuit, Denver

Apple Maps

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.

Towleroad.com 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.

USA, Oklahoma: Tenth Circuit Hears Marriage Equality Case

Thursday, April 17th, 2014

Tenth Circuit, Denver

Apple Maps

The 10th Circuit heard its second marriage equality case this month, after hearing Utah’s last week.

SDGLN reports:

In the second gay-marriage case to hit the 10th Circuit Court of Appeals in Denver in the past week, the three-judge panel heard oral arguments in the federal case that challenges Oklahoma’s ban on weddings for gay and lesbian couples. The Oklahoma case, Bishop v. Smith, is the oldest active gay-marriage case in the U.S., having been filed in 2004. Both the Oklahoma and Utah cases, which have been expedited because district court judges have declared the laws unconstitutional, are the first to be heard by a federal appellate court since last year’s historic Windsor decision that struck down a key portion of DOMA, the discriminatory Defense of Marriage Act.

The swing vote in the case seems to be leaning toward marriage equality.

The Sun Herald reports:

The two cases are the first to reach an appellate court since the U.S. Supreme Court last year struck down the federal Defense of Marriage Act. Since then, gay rights lawyers have successfully convinced eight federal judges that the ruling means courts must strike down laws against gay marriage because they deprive same-sex couples of a fundamental right. During Thursday’s hearing before the 10th U.S. Circuit Court of Appeals panel, Holmes suggested he interpreted the Supreme Court’s ruling the same way. “The state cannot define marriage in any way that would trample constitutional rights, right?” Holmes asked Jim Campbell, the attorney representing the defendant in the case, the Tulsa County clerk.

Queerty also zooms in on Holmes’ line of questioning.

What’s significant is that the judge widely viewed as the swing vote on the panel, Jerome Holmes, seemed to tip his hand in favor of upholding the rulings. “The state cannot define marriage in any way that would trample constitutional rights, right?,” Holmes asked the attorney representing Oklahoma, which wants the ban to remain. That’s a pretty pointed question that gets to the heart of the legal issue. The other two judges on the panel, Carlos Lucero and Paul Kelly Jr., have already signaled that their votes. (Lucero for marriage equality, and Kelly against.) The state’s predictably lame response is that the voters overwhelmingly supported the marriage ban, so it is okay to trample constitutional rights. Also, opposite sex couples have ”natural procreative potential,” as if the state demands a fertility test to get a marriage certificate.

The Denver Post wonders whether the case will be thrown out on a technicality.

Oral arguments before the 10th U.S. Circuit Court of Appeals on Oklahoma’s ban on same-sex marriage Thursday had less to do with weddings than whether the plaintiffs sued the wrong person — again. “We don’t believe the plaintiffs have standing,” said Jim Campbell, attorney for defendant Tulsa County Clerk Sally Smith… The argument looms large because if defendants are correct, then the plaintiffs’ 10-year court odyssey that began in 2004 will have been in vain. “If the court agrees on our issue, that will end the case,” Campbell said.

LGBTQ Nation has the audio of the hearing.

Now we wait for a couple months in a ritual that has become all too familiar in these legal cases.

Find more articles and gay wedding resources in Oklahoma.

USA, Oklahoma: Tenth Circuit Hearing on State’s Marriage Equality Ban

Thursday, April 17th, 2014

Tenth Circuit, Denver

Apple Maps

Another state, another hearing today on a marriage equality ban.

Edge Boston reports:

Lawyers for a couple challenging Oklahoma’s ban on gay marriage and the clerk who refused to grant them a license head to a federal appeals court Thursday with the rare opportunity to build on arguments the judges heard in a similar case just a week earlier… U.S. District Judge Terence Kern of Tulsa ruled in January that Oklahoma’s ban violated the equal protection clause in the U.S. Constitution. He immediately stayed his ruling, preventing any same-sex marriages from taking place while the ruling was appealed. In contrast, more than 1,000 gay couples in Utah married before the U.S. Supreme Court stepped in to issue a stay.

These cases are moving quickly – is it possible they will reach the US Supreme Court in time for 2015?

Find more articles and gay wedding resources in the United Kingdom.

USA, Oklahoma: Community Call After Thursday’s Marriage Equality Hearing

Monday, April 14th, 2014

image1297440Please mark your calendar now to join Marriage Equality USA and partners for a national COMMUNITY CALL to be held on the evening of Thursday, April 17 to discuss the day’s events surrounding the Oklahoma marriage equality case.

7pm MT / 8pm CT / 9pm ET

Sign up now to receive the call in information!

On 17 April 2014, the 10th Circuit Federal Court of Appeals in Denver will hear oral arguments in the Oklahoma marriage equality case, Bishop v. Smith. The hearing will begin at 1:30pm MT.

You are invited to our Community Call to discuss what happened in the courtroom, hear community reaction, and to ask questions about where we go from here. This call is open to all supporters of marriage equality and allies — feel free to share this info!

Participants on the call will include: John Lewis, Marriage Equality USA’s Legal and Public Policy Director; Kathleen Perrin, nationally recognized legal expert; and Brian Silva, Marriage Equality USA’s Executive Director.

To receive the call in information, sign up at http://tinyurl.com/oklahoma10. All attendees will receive the information on the morning of Thursday, April 17.

USA, Utah: Judges Appear Divided in Marriage Equality Lawsuit

Thursday, April 10th, 2014

Tenth Circuit, Denver

Apple Maps

The Utah marriage equality hearing is over at the Tenth Circuit. The three-judge panel appears sharply divided.

Edge Boston reports:

A three-judge panel appeared sharply divided as they questioned attorneys Thursday at a hearing over whether to uphold a lower court’s ruling that struck down Utah’s ban on gay marriage.

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.

The Advocate seems cautiously optimistic:

BuzzFeed’s legal editor, Chris Geidner, was one of the first journalists out of the Denver courtroom following the conclusion of oral arguments shortly after 11 a.m. Mountain time. “With two of the judges — Lucero and Holmes — focused intently on the discrimination claimed by the plaintiffs and the Supreme Court’s history of recognizing marriage as a fundamental right, the hearing ended with the court appearing to lean toward agreeing with the trial court decision that the law is unconstitutional,” writes Geidner. “Holmes, however, had tough questions for both sides — and even suggested near the end of the argument that the court might not have the authority to hear the case.”

The audio for the hearing has been released here.

Meanwhile, Utah’s Attorney General seems intent on taking the state further backwards, going after two adoptions by same sex couples recently approved by a judge.

LGBTQ Nation reports:

The Utah Attorney General is asking a state appeals court to block two adoptions recently approved for same-sex couples. The state argues judges erred in granting requests by two couples to add a partner as a legal parent. In each case, only one of the partners has legal custody of a child they are raising together.

It burns me up that a latino man is so intent on denying the rights of another minority.

The judges will likely rule in a few months. Next up, Oklahoma!

Find more articles and gay wedding resources in Utah.

USA, Utah: Tenth Circuit to Hear Marriage Equality Lawsuit Today

Thursday, April 10th, 2014

Today is the day the first of the new marriage equality lawsuits reaches a district court.

Ari Ezra Waldman has a few things to look for at today’s 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?

Lisa Keen has a detailed look at the trial and its participants.

Towleroad reports:

The 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.”

Tenth Circuit LawsuitsHRC has a map and recap of the marriage equality cases pending before the 10th Circuit:

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. 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.

Meanwhile, the state just threw Mark Regnerus and his flawed gay parenting study under the bus in a last-minute brief.

Joe.my.God reports:

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.


Finally, a Mormon couple with a gay son is defying the church by being featured in an ad for marriage equality.

Towleroad.com reports:

A Utah Mormon couple with a gay son (below), four other kids, and 18 grandchildren pushes for marriage equality in a new ad campaign airing this week as the Tenth Circuit Court of Appeals considers a challenge to the state’s ban on gay marriage.

Will the Utah case be the next to reach the US Supreme Court?

Find more articles and gay wedding resources in Utah.