Marriage Litigation at the 10th Circuit

In the summer of 2014, the U.S. Court of Appeals for the 10th Circuit affirmed the freedom to marry in Utah and Oklahoma. In both states, federal judges had struck down existing state marriage bans for same-sex couples, ruling that they violated the U.S. Constitution. Now, parties in both the Utah and Oklahoma cases are seeking review from the United States Supreme Court. Learn more here. 

What's Happening In the States:
The 10th Circuit covers six states – Utah, Oklahoma, New Mexico (which has the freedom to marry), Colorado, Wyoming and Kansas. As a result, these two cases will be closely watched in all six states, as well as across the country.

Headed to the 10th Circuit

LANDSCAPE: In December 2013, a federal judge ruled in favor of the freedom to marry in Kitchen v. Herbert, striking down the ban on same-sex couples from marrying. 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. The case was heard in Denver by a three-judge panel of the court on April 10th and received a ruling on June 25 affirming the lower court's decision. Parties in the case are now seeking review from the U.S. Supreme Court.

In a related federal court case, the American Civil Liberties Union filed a complaint (Evans v. Utah) arguing that the state must respect the marriages of the same-sex couples who received legal marriage licenses in that window and were wed. A federal judge ruled in the plaintiffs' favor in May 2014, and the ruling is now stayed pending action from the 10th Circuit Court of Appeals. The suit would impact the nearly 1,300 couples who were legally married in that brief window.

UP NEXT: Oral arguments in Kitchen v. Herbert (4/10)

NCLR Case Page
10th Circuit Ruling
Plaintiffs' Opening Brief
Meet the Plaintiffs

LANDSCAPE: In January 2014, a federal judge ruled in favor of the freedom to marry in Bishop v. Smith – a case pending for nearly a decade - striking down the marriage ban for same-sex couples. The judge immediately stayed the ruling, acknowledging a certain challenge by the state. The case was be heard by a three-judge panel in the 10th Circuit Court of Appeals on April 17th in Denver and on July 18, the panel ruled in favor of the freedom to marry. Parties in the case are now seeking review from the U.S. Supreme Court. 

More on the Case
10th CIRCUIT RULING
Meet the Plaintiffs
Plaintiffs' Brief

Other 10th Circuit States

LANDSCAPE: A federal judge and a state judge ruled in separate lawsuits, Burns v. Hickenlooper and two consolidated cases (McDaniel-Miccio v. Hickenlooper and Brinkman v. Long), respectively, in the summer of 2014 declaring that same-sex couples should have the freedom to marry in Colorado. The rulings are on hold pending further action from the 10th Circuit Court of Appeals. Gay and lesbian couples in Colorado can enter into a civil union, but a constitutional amendment in the state restricts them from marrying. SEE THE CASES.

LANDSCAPE: The National Center for Lesbian Rights and private attorneys filed a lawsuit in Wyoming state court (Courage v. Wyoming) on behalf four same-sex couples seeking the freedom to marry or respect for their legal marriages performed in other states. This is another state-specific challenge, as same-sex couples are prohibited from marrying by a state statute passed by the Wyoming legislature.

NCLR Case Page
Meet the Plaintiffs
LANDSCAPE: Private lawyers in Topeka, KS filed a lawsuit in state court (Nelson v. Kansas Dept. of Revenue) on behalf of two same-sex couples seeking respect for their out-of-state marriage licenses in Kansas for the purpose of filing their taxes as a married couple.
LANDSCAPE: Same-sex couples secured the freedom to marry in December 2013, when the New Mexico Supreme Court ruled that the state constitution guarantees them the right to marry. A legislative challenge to the court’s ruling failed and, in fact, the 2014 legislative session ended without the bill even receiving a public hearing.
NCLR Case Page
Read the Ruling
what you need to know:
Nearly two dozen friend-of-the-court briefs were filed with the appeals court on the Utah case (Kitchen v. Herbert), most of them addressing the core issues in both that case as well as Bishop v. Smith in Oklahoma, which is on a different briefing schedule. 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.
Check out the complaints in both states, as well as where you can find the supporting briefs:
Utah 10th Circuit Ruling
Oklahoma 10th Circuit Ruling

Friend-of-the-Court Briefs

Explosion of Marriage litigation

There are now more than 80 active lawsuits in 30 states or territories seeking the freedom to marry or the respect of existing, legal marriages between same-sex couples. Some of these cases are being led by legal advocacy organizations, including the National Center for Lesbian Rights, the American Civil Liberty Union, and Lambda Legal, while others have been brought by same-sex couples represented by private counsel in the states. Take a look at these cases and where they fit into a broader, national strategy about securing the freedom to marry for all Americans.

All Marriage Litigation

How Litigation Fits into the National Strategy

The 10th Circuit in the News

Appeals Court Rules Marriage Ban Unconstitutional in Oklahoma
The Oklahoman
The 10th Circuit Court of Appeals puts same-sex marriages on hold in Oklahoma until U.S. Supreme Court decides whether to hear appeal in Utah or Oklahoma cases.

10th Circuit: Utah's Same-Sex Marriage Ban is Unconstitutional
The Salt Lake Tribune
In landmark decision, 10th Circuit Court upholds federal judge’s ruling declaring Utah’s ban on gay marriage unconstitutional.

LISTEN: Oral Arguments in 10th Circuit Court of Appeals
Freedom to Marry
Listen to audio, read key excerpts, and see photos of the plaintiffs and legal teams at the 6th Circuit Court of Appeals.

Wendy Williams Montgomery, Mormon Mother, Shares Story About Gay Son
The Huffington Post
"I have become a better person for having a gay son - the things that I’ve learned and the way that I see other people and the way that I love other people, it’s just more loving, more open, less judgmental."

Op-ed from Washington and Massachusetts Attorneys General: Equality Made Marriage Stronger in Our States
The Salt-Lake Tribune
"Our experience, and the experience of other marriage equality states, demonstrates that the institution is strengthened by extending marriage rights, protections and responsibilities to all families."

Gay Couples in Oklahoma Same-Sex Marriage Ban Lawsuit to Be Honored
The Associated Press
"Two gay couples who are plaintiffs in a potentially landmark case challenging Oklahoma's ban on same-sex marriage are being honored by the American Civil Liberties Union."

Majority of Same-Sex Couples Who Married in Utah Were Lesbian
The Salt Lake Tribune
"Records from the 22 counties in which same-sex couples married after U.S. District Judge Robert J. Shelby’s Dec. 20 ruling indicate that 1,243 same-sex couples married."

Editorial Board: Time for Wyoming to Say Yes to Gay Marriage
The Wyoming Star-Tribune
"We think court challenges should be unnecessary. The state Legislature is the best place for the state to come to terms with how same-sex unions is a good fit in Wyoming. Whichever way the courts rule, we hope the Legislature will revisit the matter and do the right and moral thing."

Same-sex Couples Say That State Is Interfering with Adoptions
The Salt Lake Tribune
With a marriage ruling on hold, the Utah Attorney General says courts can’t proceed on the issue of same-sex couples adopting children until the constitutionality of Amendment 3 is resolved.

Oklahoma Gay Marriage Ban Lawsuit Pending for 9 Years
The Associated Press
"Two same-sex couples who sued for the right to marry in conservative Oklahoma knew it would be a struggle, but they couldn't have expected that nine years later, they would still be awaiting their day in court."

Google, Facebook, and Other Businesses Argue Against Oklahoma's Same-Sex Marriage Ban
NewsOK
Some of the biggest corporations in the United States, including Google, Facebook and Starbucks, say Oklahoma’s law against same-sex marriage forces them to violate their values and differentiate among their workers

Federal Judge: Oklahoma Ban on Same-Sex Marriage Unconstitutional
CNN
"A federal judge ruled Tuesday that an Oklahoma law limiting marriage to heterosexual couples violates the U.S. Constitution, giving yet another victory to same-sex marriage supporters."

United States to Recognize Marriages Disputed by Utah
The New York Times
"The Obama administration on Friday made the latest contribution to a fast-moving legal battle over same-sex marriage rights as the Justice Department said that the federal government would recognize as lawful the marriages of some 1,300 same-sex couples in Utah."

Republicans From the West Give Support for Gay Marriage
The New York Times
"Evoking Ronald Reagan and Barry Goldwater, a group of Western-state Republicans plans to enter the battle in favor of same-sex marriage on Tuesday, urging a federal appeals court to declare gay marriage bans in Utah and Oklahoma unconstitutional."

Gay Marriage Cases Put Denver-Based Federal Appeals Court in Spotlight
The Denver Post
"Now, two marriage cases are headed to the Denver-based U.S. 10th Circuit Court of Appeals, one of the most politically divided appeals courts in the nation and a panel that finds itself in the national spotlight."

Recent Polling on Majority Support for Marriage Nationwide

National Polling

Regional Polling

State Polling

A February 2014 poll from The Washington Post-ABC News found that 59% of all Americans support the freedom to marry for same-sex couples. For the first time, the poll showed that there is a majority support for marriage in every region of the country, as well as plurality support in every age group.

A February 2014 poll from The Washington Post-ABC News tracked support for marriage in the Midwest at 66%, with 39% "strongly" supportive. Just 28% of Midwesterners said they opposed the freedom to marry.

Even at the state level in the 10th Circuit states, support for the freedom to marry continues to grow. In Colorado, 53% of voters support marriage, with 60% support from voters under 45 years old. In Utah, public opinion is evenly split, with 48% saying they support marriage and 48% opposed.

Who Supports the Freedom to Marry?

Republican Legislators from Wyoming
On March 9, 7 Republican lawmakers published an op-ed in The Wyoming Star-Tribune in support of marriage. They wrote, "As Republicans, we have stood up for lower taxes, protecting seniors and giving veterans the benefits they have earned. We don’t believe that these important tenets should be denied to certain citizens because of whom they are or who they love." READ MORE.

Salt Lake City Mayor Ralph Becker
Mayor Becker published an op-ed in The Salt Lake Tribune about officiating dozens of weddings on the first day of the freedom to marry in Utah. He wrote, "As each of us comes to know these fellow citizens, it brings a deeper reflection on how there are so many more similarities than differences among us." READ MORE.

Former WY Sen. Alan Simpson & Former KS Sen. Nancy Kassebaum
Former Wyoming Senator Alan Simpson and former Kansas Senator Nancy Kassebaum joined more than 20 Republicans across the 10th Circuit states in signing on to an amicus brief citing the core values of freedom and liberty evoked by Ronald Reagan and Barry Goldwater. READ MORE.

Colorado Governor John Hickenlooper
In March 2014, Gov. Hickenlooper became a co-chair for Why Marriage Matters Colorado, a public education focused on building support for marriage in Colorado. He said at the launch, "If all men and women truly have the inalienable right to pursue happiness, and if all people are created equal, then by extension of law, logic, and love, every adult couple should also have the freedom to join in marriage." READ MORE.