755 F.3d 1193 (10th Cir. 2014), 13-4178, Kitchen v. Herbert

Docket Nº:13-4178
Citation:755 F.3d 1193
Opinion Judge:LUCERO, Circuit Judge.
Party Name:DEREK KITCHEN; MOUDI SBEITY; KAREN ARCHER; KATE CALL; LAURIE WOOD; KODY PARTRIDGE, individually, Plaintiffs - Appellees, v. GARY R. HERBERT, in his official capacity as Governor of Utah; SEAN REYES, in his official capacity as Attorney General of Utah, Defendants - Appellants, and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake Coun
Attorney:Gene C. Schaerr, Special Assistant Attorney General, Salt Lake City, Utah (Brian L. Tarbet, Chief Deputy Attorney General, Parker Douglas, Chief of Staff and General Counsel, Stanford E. Purser, and Philip S. Lott, Assistant Utah Attorneys General, Salt Lake City, Utah, and John J. Bursch, Warner...
Judge Panel:Before KELLY, LUCERO, and HOLMES, Circuit Judges. KELLY, Circuit Judge, concurring in part and dissenting in part. KELLY (In Part) KELLY, Circuit Judge, concurring in part and dissenting in part.
Case Date:June 25, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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755 F.3d 1193 (10th Cir. 2014)

DEREK KITCHEN; MOUDI SBEITY; KAREN ARCHER; KATE CALL; LAURIE WOOD; KODY PARTRIDGE, individually, Plaintiffs - Appellees,

v.

GARY R. HERBERT, in his official capacity as Governor of Utah; SEAN REYES, in his official capacity as Attorney General of Utah, Defendants - Appellants, and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendant

No. 13-4178

United States Court of Appeals, Tenth Circuit

June 25, 2014

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. (D.C. No.2:13-CV-00217-RJS).

Gene C. Schaerr, Special Assistant Attorney General, Salt Lake City, Utah (Brian L. Tarbet, Chief Deputy Attorney General, Parker Douglas, Chief of Staff and General Counsel, Stanford E. Purser, and Philip S. Lott, Assistant Utah Attorneys General, Salt Lake City, Utah, and John J. Bursch, Warner Norcross & Judd LLP, Grand Rapids, Michigan, and Monte N. Stewart, Boise, Idaho, with him on the briefs), for Defendants--Appellants.

Peggy A. Tomsic, Magleby & Greenwood PC, Salt Lake City, Utah (James E. Magleby and Jennifer Fraser Parrish, Magleby & Greenwood PC, Salt Lake City, Utah, and Kathryn D. Kendell, Shannon P. Minter, David C. Codell, National Center for Lesbian Rights, San Francisco, California, with her on the brief), for Plaintiffs--Appellees.[*]

Before KELLY, LUCERO, and HOLMES, Circuit Judges. KELLY, Circuit Judge, concurring in part and dissenting in part.

OPINION

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LUCERO, Circuit Judge.

Our commitment as Americans to the principles of liberty, due process of law, and equal protection of the laws is made live by our adherence to the Constitution of the United States of America. Historical challenges to these principles ultimately culminated in the adoption of the Fourteenth Amendment nearly one-and-a-half centuries ago. This Amendment extends the guarantees of due process and equal protection to every person in every State of the Union. Those very principles are at issue yet again in this marriage equality appeal brought to us by the Governor and Attorney General of the State of Utah from an adverse ruling of the district court.

We are told that because they felt threatened by state-court opinions allowing same-sex marriage, Utah legislators and--by legislature-initiated action--the citizens of the State of Utah amended their statutes and state constitution in 2004 to ensure that the State " will not recognize, enforce, or give legal effect to any law" that provides " substantially equivalent" benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex. Utah Code § 30-1-4.1. These laws were also intended to assure non-recognition irrespective of how such a domestic union might be denominated, or where it may have been performed. Id. Plaintiffs challenged the constitutionality of these laws and the district court agreed with their position. Under 28 U.S.C. § 1291, we entertain the appeal of that ruling.

Our Circuit has not previously considered the validity of same-sex marriage bans. When the seed of that question was initially presented to the United States Supreme Court in 1972, the Court did not consider the matter of such substantial moment as to present a justiciable federal question. Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (per curiam). Since that date, the seed has grown, however. Last year the Court entertained the federal aspect of the issue in striking down § 3 of the Defense of Marriage Act (" DOMA" ), United States v. Windsor, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), yet left open the question presented to us now in full bloom: May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry?

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Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state's marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union. For the reasons stated in this opinion, we affirm.

I

Utah residents Derek Kitchen and Moudi Sbeity have been in a loving, committed relationship for several years. The couple lives together in Salt Lake City, where they jointly own and operate a business. Kitchen declares that Sbeity " is the man with whom I have fallen in love, the man I want to marry, and the man with whom I want to spend the rest of my life." In March 2013, Kitchen and Sbeity applied for a marriage license from the Salt Lake County Clerk's office, but were denied because they are both men. Being excluded from the institution of marriage has caused Kitchen and Sbeity to undertake a burdensome process of drawing up wills and other legal documents to enable them to make important decisions for each other. Even with these protections, however, the couple cannot access various benefits of marriage, including the ability to file joint state tax returns and hold marital property. Sbeity also states that the legal documents the couple have obtained " do not and cannot provide the dignity, respect, and esteem" of marriage. The inability to " dignify [his] relationship" though marriage, Kitchen explains, communicates to him that his relationship with Sbeity is unworthy of " respect, equal treatment, and social recognition."

Laurie Wood and Kody Partridge are also Utah residents who wish to " confirm [their] life commitment and love" through marriage. They applied for a marriage license from the Salt Lake County Clerk's office in March 2013, but were denied because they are both women. This denial made Wood " feel like a second class citizen." The couple's inability to marry carries financial consequences. Because Partridge will be unable to obtain benefits under Wood's pension, the couple has procured additional life insurance policies. Partridge states that she and Wood face " risks and stigmas that none of [her] heterosexual married friends and family ever have to face." She points to the example of her parents, who were married for fifty-five years, observing that her father never had to worry about his ability to be present or make medical decisions when his wife became terminally ill. Wood hopes that marriage to Partridge will allow " both society and our families [to] recognize the life commitment and love we feel for each other."

Karen Archer and Kate Call are also Utah residents in a loving, committed relationship. Archer, who suffers from chronic health problems, fears that the legal documents the couple has prepared will be subject to challenge if she passes away. Her past experience surviving other partners informs this fear. Although the documents she prepared in a prior relationship served their purpose when her former partner passed, Archer was ineligible to receive her partner's military pension benefits. Seeking the security enjoyed by other married couples, Archer and Call travelled to Iowa in July 2011, where they were wed. Because they could not be married in their home state, financial constraints dictated a modest wedding unattended by family and friends. " Despite the inconvenience and sad pragmatism of our Iowa marriage," Call explains, " we

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needed whatever protections and security we could get for our relationship" because of Archer's failing health. However, Utah does not recognize Archer and Call's marriage.

In March 2013, Kitchen, Sbeity, Wood, Partridge, Archer, and Call filed suit against the Governor and Attorney General of Utah and the Clerk of Salt Lake County (all in their official capacities). Plaintiffs challenged three provisions of Utah law relating to same-sex marriage. Utah Code § 30-1-2(5) includes among the marriages that are " prohibited and declared void" those " between persons of the same sex." Id. In 2004, the Utah Legislature passed § 30-1-4.1, which provides:

(1)(a) It is the policy of this state to recognize as marriage only the legal union of a man and a woman as provided in this chapter.

(b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married. (2) Nothing in Subsection (1) impairs any contract or other rights, benefits, or duties that are enforceable independently of this section.

Id. The Legislature also referred a proposed constitutional amendment, known as Amendment 3, to Utah's voters. It states:

(1) Marriage consists only of the legal union between a man and a woman.

(2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.

Utah Const. art. I, § 29; see Laws 2004, H.J.R. 25 § 1.

The State's official voter pamphlet described rulings by courts in other states striking down statutory prohibitions on same-sex marriage as inconsistent with state constitutional provisions. In the " arguments for" section, written by a state...

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