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Religious Tolerance logo

Same-sex marriage (SSM) in Utah:

Part 19: 2014-AUG: Webmaster's comments on
the "Kitchen v. Herbert case.
status of marriage equality in Utah.
Unusual appeal to the U.S. Supreme Court by
"Kitchen v. Herbert" plaintiffs.


This topic is continued from the previous essay.

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The acronym "SSM" refers to same-sex marriage;
"LGBT refers to the Lesbian, Gay, Bisexual & Transgender community.

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LGBT symbol 2014-AUG: Webmaster's comment on the status of marriage equality in Utah:

Marriage equality in Utah is a very active topic. The majority of adults in Utah are members of The Church of Jesus Christ of Latter-day Saints -- the Mormon church. Although some commentators have suggested that the denomination was tolerant of sexual minorities during its early years, the Church has solidly opposed marriage equality recently. Mormons donated tens of millions of dollars and enormous amounts of volunteer effort in an ultimately unsuccessful fight to deprive same-sex couples of the right to marry in California.

The current situation is untenable. If a same-sex couple is married in one state and either relocates to another state or simply takes a vacation that involves traveling in other states, their status can change from being:

  • Married with full benefits and protections for themselves and their children, to being

  • Recognized only as being in a civil union with many of those same benefits and protections, to being

  • Considered in a domestic partnership with few of these benefits, to being

  • Considered "legal strangers" -- as mere roommates -- with no recognition at all of their loving, committed relationship.

The consequences in the case of a medical emergency has been life threatening for some married couples.

It would be ironic if Utah were to be the state whose marriage equality lawsuit was the one that caused the U.S. Supreme Court to legalize same-sex marriage throughout the country. Still, if there is one topic over which supporters and opponents to marriage equality can agree, it is that they would like the conflict over same-sex couples' right to marry resolved as soon as possible.

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Current status of lawsuits in Utah:

There are currently two active cases in Utah:

  1. Concerning the original lawsuit to allow same-sex couples to marry -- Kitchen v. Herbert: A further development is likely later in 2014 -- perhaps in December -- when the U.S. Supreme Court decides whether to grant certiorari to the Utah case. That is, whether they will accept Utah's appeal of the decision by the three-judge panel of the 10th U.S. Circuit Court of Appeals. If the Court grants certiorari, then oral arguments would probably be held in 2015-MAR, and the Court would probably issued its ruling in late 2015-JUN.

    However, the Supreme Court has no obligation to accept this or any other lawsuit. The Justices may wish to wait for a year until more of the approximately 70 same-sex marriage lawsuits have been decided by lower courts before accepting an appeal of one or more cases for consideration. That would delay the Court's "final" ruling until mid-2016 or mid-2017.

    It is worth noting that even if the U.S. Supreme Court were to issue a broad ruling requiring all states to attain marriage equality across the country, this would not necessarily be their settled opinion. In the famous Bowers v. Hardwick decision of 1986, the court upheld a state law in Georgia that criminalized consensual sexual activity between two adults of the same gender. Seventeen years later, in 2003, in Lawrence v. Virginia, the court overturned their earlier decision and declared unconstitutional the law in Georgia, along with similar laws in over a dozen other states.

    Justice Kennedy, writing for the majority in Bowers, apologized for the court's earlier error. In an amazing passage, he stated that Bowers:'

    "... continuance as precedent demeans the lives of homosexual persons....[That decision] was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be, and now is, overruled."

    Thus it is conceivable that, during 2015-JUN, the Supreme Court could declare same-sex marriage available in every state and territory. But they could later revisit marriage equality during the 2020's, reverse their decision, ban marriage by same-sex couples everywhere, and forcibly divorce all loving, committed, same-sex couples across the country. The liberal/conservative balance on the court is so well known that the votes of seven -- perhaps eight -- of the nine Justices can now be reliably predicted on a case involving marriage equality. If the Republican Party were to take over control in the Senate, more conservative strict constructionist justices could be appointed to the court, and the present balance could be inverted. The court could repudiate its 2015 decision and make marriage unavailable to same-sex couples across the U.S. In Constitutional Law, nothing is permanent.

  2. Concerning the second lawsuit to decide the fate of the 1,300 marriages -- Evans v. Utah: These marriages were solemnized by same-sex couples between late 2014-DEC and early 2015-JAN. The lawsuit will determine whether the State of Utah will be forced to recognize the marriages. A judge of the District Court ruled in the plaintiffs' favor during 2014-MAY. This "marriage recognition" lawsuit was subsequently appealed by the State of Utah to the 10th U.S. Circuit Court of Appeals. They have yet to issue their ruling.

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star image "Kitchen v. Herbert" plaintiffs file an unusual request with the U.S. Supreme Court:

Normally, when the plaintiffs win in a U.S. Circuit Court of Appeals, they are anxious that the case not be appealed to the U.S. Supreme Court. For this lawsuit, if the Court of Appeals' decision were not appealed, then the plaintiffs will have won marriage equality for the State of Utah, and perhaps for the other states covered by the Court: Wyoming, Colorado, Kansas and Oklahoma. The court also has jurisdiction over New Mexico, but that state's Supreme Court has already ruled same-sex marriage to be legal.

However, the plaintiffs actually support the State of Utah's appeal to the U.S. Supreme Court, even if they have to risk losing all of their gains.

The editor of The Rainbow Times -- a pro-equality group -- wrote:

"... the plaintiffs argue that Supreme Court review is required because same-sex couples in Utah and across the country urgently need to have the security of marriage wherever they work or travel to fully protect themselves and their families. The brief argues that only a Supreme Court decision affirming their right to marry and to have their marriages respected nationwide can resolve this fundamental inequality.

The plaintiff couples -- Kody Partridge and Laurie Wood, Derek Kitchen and Moudi Sbeity, and Kate Call and Karen Archer -- argue that state laws banning marriage equality violate the U.S. Constitution’s [14th Amendment's] guarantees of equal protection and due process. The couples, who won favorable decisions from lower federal courts, asked the Supreme Court to review the case because the marriages of same-sex couples will not truly be equal unless they are respected throughout the country." 1

Unless marriages by same-sex couples are recognized across the entire U.S., a simple vacation trip to other states could be disastrous if a health emergency occurred.

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This topic continues in the next essay

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. TRT Editor, "Utah Marriage Equality Plaintiffs Ask U.S. Supreme Court to Review Case," The Rainbow Times, 2014-AUG-28, at:

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Home > Religious info. > Basic > Marriage > SSM > SSM sub menu > Utah > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-JUN
Latest update: 2014-AUG-29
Author: B.A. Robinson

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