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Same-sex marriage in Utah: How we arrived here

Written by Bob Henline

On March 25, 2013, Salt Lake attorney Peggy Tomsic filed suit against the State of Utah on behalf of three couples, Derek Kitchen and Moudi Sbeity, Kate Archer and Karen Call, and Kody Partridge and Laurie Wood.  The case, now known as Kitchen v. Herbert, sought to overturn Utah’s Amendment 3, which defined the institution of marriage as a relationship between one man and one woman.  It further denied any legal recognition of any relationship, regardless of name, that would provide “substantively equivalent legal effect.”

Amendment 3 was passed by 65 percent of Utah voters in a general election in 2004.  It was pushed by a number of prominent Utah social and political figures, including the Church of Jesus Christ of Latter-day Saints.  On October 20, 2013 — just 10 days before the election — the LDS Church issued this statement:  “Any other sexual relations, including those between people of the same gender, undermine the divinely created institution of the family.  The Church accordingly favors measures that define  marriage as the union of a man and woman and that do not confer legal status on any other sexual relationship.”

MarkLawrence_headshot

Mark Lawrence

The force behind Tomsic’s suit was a Salt Lake City resident, Mark Lawrence.  Inspired by the federal court challenge of the so-called Defense of Marriage Act, Lawrence called together a small group of activists at a local coffee shop on a July evening in 2012.

From that meeting Restore Our Humanity was born.  The group started with a simple mission:  overturn Amendment 3 in federal court.  Lawrence and his team began organizing, established a non-profit, and looking for plaintiff couples and an attorney to bring the suit.  The equality organizations, both locally and nationally, ignored Lawrence and Restore Our Humanity. Utah was not considered a battleground for marriage equality. Traditional strategy and conventional wisdom dictated that the passage of non-discrimination laws at the state level must precede marriage action.

Restore Our Humanity thought differently. They had already decided that waiting for public opinion and legislative action was a waste of time. They were going to raise the estimated $500,000 to $1,000,000 needed and take the case to federal court.

Lawrence reached out to several attorneys and ultimately retained Tomsic and her firm, Magleby & Greenwood. He recruited the plaintiffs and put them together with Tomsic, and then jumped full force into fundraising, planning for a three to five year legal battle.

There is, however, nothing quite so urgent as an idea whose time has come.  On December 4, 2013, United States District Judge Robert Shelby heard initial arguments in a summary judgment hearing. Shelby announced that the planned to rule on the summary judgment motions by mid-January 2014.  Most observers speculated that he would deny both summary motions and schedule the matter for trial later in the year.

Shelby had a few surprises in store. On December 20, 2013, weeks before the anticipated date, Shelby ruled. He denied Utah’s motion for summary dismissal and granted the plaintiffs’ motion for summary judgment. He declared Utah’s Amendment 3 and the associated “marriage discrimination laws” (as labeled in the suit) unconstitutional and immediately stricken down. By mid-day on that chilly Friday afternoon, exuberant couples were lined up through the Salt Lake County Clerk’s office and out the door, ready to file for marriage licenses. Ministers and authorized public officials were on-hand to perform ceremonies and solemnize marriages.

There was a sense of celebration, but also of anxiety and urgency. Utah’s attorneys had already asked for a stay in order to stop any further marriages from taking place. Both Judge Shelby and the Tenth Circuit Court of Appeals denied Utah’s request for a stay. Marriages continued for 17 days in Utah before the stay was ultimately granted by the Supreme Court on January 6, 2014.

On January 16 the Utah Attorney General’s office announced that it had retained Gene C. Schaerr to represent the state as the appeal moved forward. Schaerr, a graduate of Brigham Young University and Yale Law School, clerked for two Supreme Court Justices, worked as associate counsel for President George H.W. Bush, and had handled over 100 cases in federal and state appellate courts.

Both parties petitioned the Tenth Circuit for an expedited appeal in the case, although after the expedited status was granted Utah’s attorneys then requested additional time to complete their filing. After granting the extension, oral arguments in the case were set for April 10, 2014 at the Byron White Federal Courthouse in Denver, Colo. before Judges Paul Kelly, Jerome Holmes, and Carlos Lucero.

Most observers agreed after the oral arguments that the court would uphold Shelby’s ruling in a split decision, with Judge Kelly dissenting.  On June 25, 2014, that speculation held true as the Tenth Circuit announced their decision — a 2-1 split affirming Shelby. The court, however, imposed a stay on their own ruling, anticipating an appeal to the Supreme Court.

Utah’s attorneys filed their appeal and the plaintiffs’ attorneys responded. Both parties urged swift and final action from the Court, arguing that this case was the perfect mechanism by which to make this decision for the nation. The appeal was now in the hands of the Supreme Court of the United States as final arbiter.

In the meantime, seven cases from five states (Utah, Oklahoma, Indiana, Wisconsin, and Virginia) in three federal circuits had been decided, all ruling in favor of marriage equality. Appeals to the Supreme Court were now pending across the nation.

The Supreme Court announced that their first scheduling conference would be held on September 29, with marriage equality cases being slated for discussion. While speculation ran rampant, many observers advised caution, noting that rarely are cases scheduled at their first conference. Others argued that the Court would wait for a split among appellate courts before engaging this issue. Some speculated the other way, that the Court, having already interjected itself by granting the stay in the Kitchen case, would take up the case and end the myriad legal battles being waged across the country. There was also a smaller number of observers, such as Lawrence himself, who felt that with all of the appellate courts ruling in favor of equality, the odds were good that the Supreme Court would just deny review and let those rulings stand.

As the days passed following the first scheduling conference with no announcement from the Court, speculation and anxiety increased. What would be the fate of the 1,300 or so couples legally married in Utah during that 17 day window? What of the couples legally married in other states, but living in Utah?  What of the families sitting in legal limbo due to stays pending action?

That speculation ended on October 6, 2014, when the United States Supreme Court announced that it was denying certiorari on the cases, thereby allowing the rulings of the appellate courts to stand. Immediately following that announcement the Fourth, Seventh, and Tenth Circuit Courts of Appeals issued their respective mandates ordering enforcement of their previous rulings.

Utah’s Governor, Gary Herbert, with Attorney General Sean Reyes at his side, held a press conference that morning.  Herbert expressed his disappointment that the Supreme Court denied the appeal and restated his belief that the definition of marriage is one for states to decide independently. He did, however, affirm his commitment to “follow the law” and released letters sent from his office and from the attorney general to various agencies and departments to immediately comply with the Tenth Circuit’s mandate.

The legal battle in Utah lasted just over 18 months, from filing to ruling; an extraordinarily short period of time for a case of this magnitude to run the full legal cycle. For many, however, the battle has been going since the Stonewall riots of 1969. In an interview with this reporter on this historic day, Restore Our Humanity founder Mark Lawrence was somber and reflective: “Yes, it is a day to celebrate, but it is also a day to remember those who came before us. We stood upon the shoulders of giants to accomplish this feat. It doesn’t belong to Restore Our Humanity, it doesn’t belong to one group of attorneys, or even one group of plaintiffs. It doesn’t belong to any local or national organization. It belongs to everyone, to an entire community that has worked for over four decades to make this happen. Many of those activists didn’t live to see this day. We should remember them.”

 

 

 

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About the author

Bob Henline

Bob Henline is the Assistant Editor of QSalt Lake Magazine, as well as a columnist and social/political activist and amateur chef.

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