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Appeals court to hear arguments on Utah’s same-sex ban
10th Circuit Court » Utah is appealing a federal judge’s ruling that Amendment 3 is unconstitutional.


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Most national polls show a majority of Americans now support same-sex marriage — among them a February 2014 survey by Pew Research Center’s Religion and Public Life Project, which said public support for gay marriage is currently at 54 percent, with 39 percent opposed.

A recent Washington Post/ABC News poll put support at 59 percent.

At a glance

A case in motion

March 25, 2013: Complaint filed in U.S. District Court for Utah on behalf of Derek Kitchen and Moudi Sbeity; Kate Call and Karen Archer; Laurie Wood and Kody Partridge.

Dec. 4, 2013: Oral arguments in Kitchen v. Herbert before U.S. District Court Judge Robert J. Shelby.

Dec. 20, 2013: Shelby grants summary judgment to plaintiffs, finding Utah’s Amendment 3 and other laws banning same-sex marriage unconstitutional.

Dec. 20, 2013: State files first of three appeals with 10th U.S. Circuit Court of Appeals in Denver; also requests hearing before Shelby on stay.

Dec. 23, 2013: After hearing arguments, Shelby denies state’s request for a stay. The 10th Circuit, in two rulings, also denies stay request.

Dec. 24, 2013: The 10th Circuit denies stay but agrees to hear appeal.

Dec. 31, 2013: State files stay application with U.S. Supreme Court. It is assigned to Justice Sonia Sotomayor, who oversees the 10th Circuit.

Jan. 6, 2014: At 8:32 a.m. MST, the U.S. Supreme Court stays Shelby’s ruling while Utah appeals it.

Jan. 8, 2014: Utah Attorney General Sean Reyes announces it will “freeze” the approximately 1,200 marriages that took place between ruling and stay decision and not recognize them.

April 10, 2014: The 10th Circuit hears arguments in Kitchen v. Herbert.

A look at marriage laws in 10th Circuit states

There are six states, including Utah, within the jurisdiction of the 10th U.S. Circuit Court of Appeals. Here’s the status of marriage equality in the circuit’s five other states:

Colorado: In 2013, the state approved civil unions. A constitutional amendment bars marriages of same-sex couples.

Kansas: A constitutional amendment adopted in 2005 prohibits same-sex marriage and recognition of marriages performed in other states. In February, the state Legislature adopted a law protecting the right of religious individuals, groups and businesses to refuse service to same-sex couples.

New Mexico: In December 2013, the New Mexico Supreme Court ruled that nothing in state law bars same-sex marriage.

Oklahoma: In 2004, voters approved a constitutional amendment banning same-sex marriage and recognition of marriages performed in other states. On Jan. 14, a federal judge ruled the state’s ban is unconstitutional. The 10th Circuit will hear an appeal April 17.

Wyoming: In 1977, the state Legislature approved a statute that bars same-sex marriage or recognition of marriages performed in other states. A movement to add that ban to the state’s constitutional has failed so far.

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In a Tuesday conference call hosted by Freedom to Marry about Thursday’s hearing, Mark McKinnon, an adviser to former President George W. Bush, said the swing in support, even among members of the GOP, resembles a "hockey stick" rather than a gradual curve.

Public sentiment aside, gay marriage remains off-limits in 33 states, and in 29 of those states there are constitutional bans similar to Utah’s Amendment 3.

After decades of debate, however, legal challenges — with Utah’s at the forefront — are underway across the nation that could finally settle the issue. There are approximately 60 cases pending in state and federal courts in 29 states and Puerto Rico.

Nine federal judges, including Shelby, have issued decisions in favor of the right of same-sex couples’ access to civil marriage, finding state bans have no rational purpose; those decisions are now before five appellate courts.

The U.S. Supreme Court could opt to let the issue simmer, leaving in place whatever determinations the circuit courts make, as it did earlier this week in opting not to take an appeal brought by a New Mexico photographer. The photographer claimed First Amendment protection after being charged under an anti-discrimination law for refusing to shoot wedding photos for a lesbian couple.

The court also doesn’t have to take the first case it receives. It could opt for a representative case and some observers say a possible candidate might be a case from the 6th Circuit Court of Appeals, where lawsuits are pending from every state in its purview: Michigan, Kentucky, Tennessee and Ohio.

"All I really care about at the end of the day," Tomsic said in an interview, "is whoever is the one that gets to argue before the Supreme Court — and it may not even be any of our cases, it may be a case after this — I just want them to win."

Wermiel said it is difficult to predict what the Supreme Court’s timing will be.


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"The justices may want to wait until more than one federal appeals court has considered the same-sex marriage issue or until there is some difference of opinion among different federal circuits. Waiting would give the justices the benefit of the thinking of more judges, something they usually prize."

Carl Tobias, a law professor at the University of Richmond, said that by summer’s end there should be a number of appellate decisions, the 10th Circuit’s among them, for the high court to weigh.

"The justices will want to see whether the courts agree and the reasoning used," said Tobias, agreeing that the court will be more likely to take a case if there are split decisions. "It may set the tone for the other [circuit courts] and give them reasons for deciding a particular way."

And that is why all eyes are now on Utah’s case at the 10th Circuit Court in Denver.

brooke@sltrib.com

Twitter: @Brooke4Trib



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