Live Blog: Marriage at the 10th Circuit

As the 10th Circuit Court of Appeals heard two landmark marriage cases in April of 2014. Freedom to Marry provided live updates to help contextualize what this activity means for the campaign to win marriage nationwide. Check back here throughout the day, and join the conversation on Twitter with #10thCircuit.

THE CALENDAR: On April 17, oral arguments will be heard in Bishop v. Smith, a marriage case from Oklahoma, by the U.S. Court of Appeals for the 10th Circuit in Denver. The hearing will begin at 1:30pm Mountain Time (3:30pm EST). Although broadcasting is not permitted from the court room, Freedom to Marry will be collecting updates from sources on the ground and posting information as soon as it becomes available. In the meantime, this page will help to provide context for the significance of this next wave of appellate rulings. Last week, on April 10, oral arguments were considered by the same three-judge panel in Utah's marriage caes, Kitchen v. Herbert.

WHAT'S AT STAKE: The Utah and Oklahoma appeals will certainly impact the state of the freedom to marry in UT and OK - but it could also have a wider reach. Because the 10th Circuit Court of Appeals covers six states - Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming - a broader ruling could potentially impact these other four 10th Circuit states as well as UT and OK. 

NATIONAL SIGNIFICANCE: These 10th Circuit hearings kick off what well may be the penultimate chapter in the campaign to win the freedom to marry nationwide: This spring, a wave of activity will sweep through the federal appellate courts, as nine different marriage cases face consideration in five different appellate courts. One of these cases – or perhaps one of the more than 60 active lawsuits nationwide seeking the freedom to marry or respect of legal marriages – could make its way to the United States Supreme Court. The Supreme Court would then have the chance to provide national resolution on marriage for same-sex couples. 

4/17 • 5:15pm • FULL AUDIO: Arguments from Inside the Court Room in 'Bishop v. Smith'

This afternoon, the 10th Circuit Court of Appeals published full audio of the proceedings in Bishop v. Smith. Hear the entire arguments, which begin with 30 minutes from the counsel representing the same-sex couples seeking the freedom to marry, then 30 minutes from the state of Oklahoma arguing against the freedom to marry.

4/17 • 4:35pm • Freedom to Marry President Responds to Oral Argument

As the plaintiffs emerged from the court room in Denver, Freedom to Marry founder and president Evan Wolfson sounded off about the national significance of these two 10th Circuit cases. He said:

"Once again, it was clear in the light of a Denver courtroom that there is no good reason for denying loving couples like Mary Bishop and Sharon Baldwin the freedom to marry. The 10th Circuit now has two freedom to marry cases before it, and other federal appellate courts will be hearing more in the weeks to come. But every day marriage is denied is a manifest hardship and unfairness for families and we hope the appeals courts will swiftly affirm the unanimous wave of lower-court rulings in favor of ending marriage discrimination. It's time for the freedom to marry throughout America, and America is ready."

4/17 • 4:35pm • Oral Arguments Conclude in Oklahoma Case

The oral argument has concluded in the Oklahoma marriage case Bishop v. Smith, and reporters have written their first impressions on Twitter.

4/17 • 2:30pm • The Plaintiffs and Legal Team Enter Court for Oral Argument

The plaintiffs and their legal team have entered the court room at the 10th Circuit Court of Appeals this afternoon, ready to make the case for why marriage matters in Oklahoma and across the 10th Circuit. The arguments begin at 3:30 ET, and we're expecting to hear reports back from the court room around 4:30 or 5:00 ET. Audio from the court room could be posted as soon as a few hours after the argument - and we'll have it up here! You can also follow along on Twitter at @freedomtomarry and #10thCircuit.

4/17 • 1:15pm • Meet Oklahoma Families Calling for the Freedom to Marry

This year, Freedom to Marry has been proud to serve as a leading and founding member of Freedom Oklahoma, the campaign to amplify the conversation about why marriage matters to all Oklahoma families. Dozens of couples and allies have joined the campaign to share their stories about marriage - and you shouldn't miss any of them! Read all of the stories here, and below read an excerpt about Amy and Brittney, who recently celebrated their second anniversary:

The women, both lifelong Oklahomans, married in New York City on March 25, 2012 after falling in love and knowing that they needed a legal bond. “We clicked right from the start – and we’ve been inseparable ever since,” Amy explained. “It was very important for us to be legally married – and it’s difficult to live in a place where that’s not recognized.”

Now, Amy and Brittney are both pursuing their masters’ degrees at the University of Oklahoma – and they’ll both graduate this spring. They own a home together, they’ve adopted a dog together, and they’re ready to build a family together.

“We absolutely love Oklahoma – and we can’t imagine calling any other place home,” Amy said. “When we start to raise a family in the near future, it’s critically important that we are recognized as a family in the eyes of the law.”

4/17 • 11:00am • Marriage Supporters Send Off Oklahoma Plaintiffs at Airport

Last night, the two plaintiff couples in the Oklahoma marriage lawsuit - Mary Bishop & Sharon Baldwin and Gay Phillips & Susan Barton - as well as their legal team, received a send-off from marriage supporters and Oklahomans for Equality at the Tulsa Airport. (Below Photo via Oklahoma Marriage Equality Lawsuit, Above via AP).

Baldwin reflected on the Utah oral arguments yesterday, explaining that the state of Utah continued to make the same tired arguments to oppose marriage for all. She said, "I think we were struck by how, frankly, it’s the same old arguments they’ve been using all along that have been so unsuccessful. They make it sound as though there are a limited number of marriage licenses and if they start handing out marriage licenses willy-nilly to same-sex couples who can’t have a child, then what is that going to do to procreation? Well, it’s not going to do anything to procreation. People who still want to have children will still have children."

See Additional Photos from Oklahomans For Equality.

4/15 • 4:30pm • Oral History: Oklahoma Plaintiffs Recount Nearly a Decade of Working Toward the Freedom to Marry

On Thursday, April 17, Mary Bishop and Sharon Baldwin - along with one other plaintiff couple - will make the case for marriage before the 10th Circuit Court of Appeals. The women filed their lawsuit - which seeks to overturn an amendment in Oklahoma that denies same-sex couples the freedom to marry in the state.

Mary and Sharon filed their suit the very next day after the anti-marriage amendment passed back in November 2004. And now, at last, victory is in reach. They sat down with Freedom to Marry this year to talk about their case and about their decade-long struggle for marriage in the Sooner State.

Read the entire oral history HERE, and listen to an audio clip of their hopes for the case:

4/10 • 4:30pm • FULL AUDIO: Arguments from Inside the Court Room

This afternoon, the 10th Circuit Court of Appeals published full audio of the proceedings in Kitchen v. Herbert. Hear the entire arguments, which begin with 30 minutes from the state of Utah, then 30 minutes from the same-sex couples seeking the freedom to marry:

Here are key excerpts from Peggy Tomsic, who argued in favor of the freedom to marry.

  • Refuting anti-gay parenting "studies." - "There is no study presented to this court that in fact measures the only issue that existed as one of the state's primary arguments, which was that same-sex parenting is not as good as what they call the 'man-woman marriage.' There isn't a single sociological study they've cited that is on point. Every organization in this nation that is responsible for the mental and physical health of children and adolescents - over 40 years of testing - [has said that the freedom to marry strengthens families]."
  • "Same-sex couples have been forming bonded, long-term relationships and raising children for many, many years." - Peggy Tomsic
  • On Utah's gay and lesbian families: - "Same-sex couples have been forming bonded, long-term relationships and raising children for many, many years. ... [But] it is every day of these Utah citizens' lives that they must face the stigma, the harm, the being treated as second-class citizens.
  • On the level of scrutiny required - "While Windsor never put a label on the scrutiny that it was applying, what it did was it looked to the Romer decision, where the Supreme Court struck down the second amendment to the Colorado Constitution, and where Romer said 'Where you have a law that categorizes a group of people based on a single trait - which in that case was being gay or lesbian - that is a rare law in our jurisprudence. And where you have them being discriminated against and treated dissimilarly for the purpose of making them unequal, the court applies careful consideration to make sure that the purpose and effect of those laws is not to harm the class.' And in Windsor, in looking at the analysis in Romer, applied a careful consideration analysis that in reading it does not resemble rational basis. It said the beginning point was to look at the design, purpose, and practical effect of the law. And even if you just look at the text of the law and you find that the purpose in effect is to treat this class separately and make them unequal, and you have these harms that the state concedes exist in this case. ... the burden shifts to the state. And the state must come forward with legitimate interests that overcome the principal purpose and practical effect that damages these individuals who are the target."
  • On the animus of Amendment 3 - "The state of Utah just doesn't treat same-sex couple as second-class citizens - it goes on to punch away at the point by saying, No legal relationship will ever be recognized that gives the same rights and benefits that opposite-sex couples get if they get married. And if you're talking about 'animus,' your honor, you're not talking about people being mean-spirited or having ill will or being bad people. 'Animus' is used by the Supreme Court of the United States both in Romer and as expressed in Windsor as talking about an improper purpose. ... You can look at the text of the document, and if you simply look at the text of Amendment 3, the intent to exclude same-sex couples and make them unequal is inherent on the face of the document." 
  • In conclusion - "We ask that you confirm the district court's opinion striking down these laws that have no basis - under any level of scrutiny. For these laws are not the type of laws that our Constitution will permit. As the Court has said before, the Constitution does not allow classes between its citizens."


4/10 • 2:15pm • Evan Wolfson Provides Context for 10th Circuit Hearings on MSNBC

This afternoon, shortly after the conclusion of the 10th Circuit Court of Appeals' oral arguments, Freedom to Marry founder and president Evan Wolfson appeared on MSNBC's The Reid Report to talk about the 10th Circuit, the hopes of returning to the U.S. Supreme Court, and how we'll win marriage nationwide.

4/10 • 2:45pm • Journalists Respond with News from Inside the Court Room

4/10 • 1:45pm • National Center for Lesbian Rights Respond to 10th Circuit Hearing

After the oral arguments concluded the hearing at the 10th Circuit Court of Appeals, the National Center for Lesbian Rights released a statement from three of the key figures in the case.

Peggy Tomsic (above, photo by Chris Geidner), who presented arguments in favor of the freedom to marry in court today.

"We are grateful that the Tenth Circuit has moved quickly in handling this appeal, which affects thousands of families in Utah who seek equal dignity and full legal recognition of their families." - Peggy Tomsic

She said: "We are grateful that the Tenth Circuit has moved quickly in handling this appeal, which affects thousands of families in Utah who seek equal dignity and full legal recognition of their families. We are confident that the judges will give this important case the consideration it deserves, and we look forward to the court’s decision."

Derek Kitchen, who is now engaged to marry his love Moudi Sbeity, added: "Moudi and I are moved by the seriousness with which the courts are taking our request that we be treated fairly as a family. We have received so much support from our family, friends, and neighbors in Utah, and we are hopeful that our state officials will soon offer us the same respect."

And Kate Kendell, Executive Director of NCLR NCLR Executive Director Kate Kendell stated: “As a Utah native, today was a proud moment as Utah residents poignantly brought their families’ stories to a federal appeals court and made a basic request for equal treatment under our nation’s Constitution. We are optimistic the court will agree that excluding same sex couples from the right to marry causes harm and allowing couples to marry strengthens families and hurts no one."

4/10 • 1:40pm • Evan Wolfson Comments on 10th Circuit Hearing

Once today's hearing concluded and the plaintiffs and defendants emerged from court (Photo above by Ben Winslow), Freedom to Marry founder and president Evan Wolfson explained the significance of the ruling in the context of the campaign to win marriage nationwide. He said:

"Today marked a new chapter in the campaign to win the freedom to marry. We now begin a wave of federal appellate arguments and rulings that set the stage for national resolution by the Supreme Court. Once again it became clear in the light of a courtroom that there is no good reason for perpetuating the denial of the freedom to marry. We hope the 10th Circuit affirms what so many lower courts and a majority of the American people have concluded: it’s time to live up to the constitutional command of equality and end marriage discrimination in the United States."

4/10 • 1:20pm • Oral Arguments Conclude

The oral arguments in the landmark Utah case at the 10th Circuit Court of Appeals have concluded, and reporters are now downloading what went on in the court room. We're curating the best tweets and information as it comes in at @freedomtomarry and will have more as the day continues.

4/10 • 1:00pm • Marriage Supporters Rally for 10th Circuit Cases in Denver

Last night, on the eve of today's landmark marriage hearings in Denver at the 10th Circuit Court of Appeals, marriage supporters came together with Why Marriage Matters Colorado and One Colorado to rally in support of the plaintiffs and to send the message that now is the time for the freedom to marry nationwide.

Watch video from the rally HERE.

4/10 • 12:30pm • A Majority Support Marriage Across the Country!

Earlier this year, in February, The Washington Post and ABC News released a new poll demonstrating record support for the freedom to marry, with 59% of Americans in favor of allowing same-sex couples to legally marry.

The poll demonstrated unprecedented support in every region of the country - from the South to the Midwest to the West to the Northeast.

For the first time, the poll also showed that in every age grouping, a plurality support marriage. Among Americans age 65 and over, support is at 47% to 43% opposed; among voters age 40-64, support is at 54% to 38% opposed; among voters age 18-39, support is at 72% to 22% opposed. Support also cuts across political beliefs: Among Republicans, support is at 40%, with 23% strongly supportive. Among self-described moderates, support is at 64% to 27% opposed.

In the Mountain West, where the 10th Circuit is based, support ranges from 59% to 66%. It's very clear: America is ready for the freedom to marry.

4/10 • 9:30am • The Kitchen v. Herbert Team Heads to Court!

This morning, the plaintiffs and legal team - including the National Center for Lesbian Rights - from Kitchen v. Herbert headed into court to make the case for why marriage matters in Utah, across the 10th Circuit states, and nationwide!

Meet the plaintiffs - Derek Kitchen & Moudi Sbeity, and Laurie Wood & Kody Partridge - at the National Center for Lesbian Rights. Photo by Restore Our Humanity.


4/10 • 9:30am • Utah Acknowledges So-Called Parenting 'Study' as Invalid

Last night, the state of Utah filed a brief with the 10th Circuit Court of Appeals requesting that their references to Mark Regnerus' so-called "New Family Structures Study," the severely flawed document that marriage opponents have relied on again and again over the course of this year, should be dropped from their arguments.

The Regnerus study has been disputed by nearly every parenting and psychological organization, and just last month, after Regnerus testified against the freedom to marry in Michigan's DeBoer v. Snyder, Judge Bernard Friedman wholly dismissed the testimony, writing: "The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 'study' was hastily concocted at the behest of a third-party funder, which found it 'essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society' and which 'was confident that the traditional understanding of marriage will be vindicated by this study.' While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged."

Read more about Utah's move from last night here.

4/9 • 7:30pm • Who We're Following Tomorrow

Although no broadcasting is permitted from inside the court room, some of the best reporters and marriage supporters from across the country will be in Denver tomorrow, April 10, to report on what's happening in the court room. They'll have to save their tweets until after the court proceedings are through, but after the oral arguments, Freedom to Marry will be curating the best bits on our Twitter, @freedomtomarry. Here are four we'll be watching out for, plus our own account:

4/9 • 6:30pm • Meet the Three Judges Hearing Marriage Cases This Week

Earlier this month, the randomly-selected three-judge panel that will consider both of the 10th Circuit Court of Appeals' marriage cases was announced. The judges are:

  • Judge Paul Kelly, appointed by President George H.W. Bush in 1991 (confirmed 1992). He is based in New Mexico, a state where same-sex couples have the freedom to marry.
  • Judge Carlos Lucero, appointed by President Bill Clinton in 1995. He is based in Colorado.
  • Judge Jerome Holmes, appointed by President George W. Bush in 2006. He is based in Oklahoma and was one of two 10th Circuit judges who denied the state of Utah's request to stay the marriage ruling after the December 20 decision came down, calling a stay "not warranted."

4/9 • 5:30pm • Wyoming Republican Senator Speaks Out for Marriage Across Mountain West

This week, Freedom to Marry released a national television ad featuring former U.S. Senator Alan Simpson of Wyoming. In the 30-second spot, Simpson, a Republican, makes the conservative case for marriage for same-sex couples and cites his own decades-long marriage to his wife.

Freedom to Marry founder and president Evan Wolfson commented on the video launch this week, saying: "We look forward to engaging in the conversation in the Mountain West as momentum for marriage builds. We could not have asked for a better, more iconic, and respected champion to make the conservative case for the freedom to marry. Sen. Simpson represents what many fellow Western Republicans - and a majority of residents in the West - believe in: Individual liberty and a live-and-let-live ethos."

4/9 • 3:30pm • Meet the Plaintiffs in the Utah Case

The courageous plaintiffs in Kitchen v. Herbert will make the case for marriage tomorrow in court alongside their counsel, the National Center for Lesbian Rights. Both plaintiff couples shared their personal stories with NCLR this year.

Derek Kitchen, who is engaged to his love Moudi Sbeity, wrote, "No loving couple should be barred from the joys and responsibilities of marriage simply because they are lesbian or gay. Since filing the lawsuit, we have been overwhelmed by the flood of support from so many people throughout our community and across the country, including many of our Mormon family and friends."

And Laurie Wood, who legally married Kody Partridge on the first day of marriages in Utah and are now seeking respect from the state, explained: "We exchanged vows in front of a minister we had never met, dozens of reporters and camera crews, and hundreds of teary cheering strangers. Amid the jubilant chaos, we looked into each other’s eyes and knew we were exactly where we were meant to be."

4/9 • 1:00pm • GET THE BASICS: Kitchen v. Herbert in Utah

Tomorrow, the 10th Circuit Court of Appeals will hear oral arguments in Kitchen v. Herbert, a lawsuit in which a federal judge struck down Utah's Amendment 3, a constitutional amendment that restricted marriage to different-sex couples. The ruling from the judge came down on December 20, 2013.

For 16 days, same-sex couples received marriage licenses in Utah, until January 6th, when the U.S. Supreme Court granted a stay in the decision. The state is aggressively defending its marriage ban, even going so far as to intercede in second-parent adoption cases – normally a family probate matter – challenging the right of legally married same-sex couples to formally adopt their children.

Nearly two dozen friend-of-the-court briefs were filed with the appeals court in the case. The briefs were filed on behalf of child welfare organizations, businesses, marriage scholars, military service-members, religious leaders and denominations, Republicans from the six states, and many leading civil rights groups in Utah and across the country.

4/9 • 12:00pm • Evan Wolfson and Mark McKinnon Discuss Impact of New National Ad Buy on MSNBC

Last night, Freedom to Marry founder and president Evan Wolfson and Mark McKinnon, chief media adviser to Republican President George W. Bush, joined Lawrence O'Donnell on The Last Call to discuss Freedom to Marry's new national ad buy, a video featuring former Senator Alan Simpson, a Republican from Wyoming. In the 30-second spot, which will run in Oklahoma, Utah, and Wyoming markets, as well as in Washington, D.C., Sen. Simpson cites his conservative values as his reasons for supporting the freedom to marry for all families. Watch the spot: