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Arguments at the Tenth Circuit in Kitchen v. Herbert: A Travelogue

This article was first published in the Liberty Reporter: 2014 Summer Newsletter >>

By John Mejia, ACLU of Utah Legal Director

 It’s not every day that one gets a chance to see history being made, so I couldn’t turn down the opportunity to see the oral arguments in the appeal in Kitchen v. Herbert, in which Utah’s ban on marriage between same sex couples was struck down.  

 The plaintiffs in this case are Derek Kitchen, Moudi Sbeity, Karen Archer, Kate Call, Laurie Wood, and Kody Partridge. They are represented by attorneys with the Salt Lake City law firm Magleby & Greenwood.

The ACLU of Utah and the ACLU LGBT Project filed a friend-of-the court brief on their behalf and on behalf of numerous civil rights organizations (both in the district court and in the Tenth Circuit.)  Here’s a real-time account of my trip to the Tenth Circuit Court of Appeals in Denver on April 10.

 5:00 am – I make it to the SLC airport.  The early bird gets a seat in the courtroom, but it’s still too early!

8:30 am – I arrive at Byron White Courthouse in downtown Denver.   It is really a beautiful place, in the classical style favored by federal courts.  Many marriage equality supporters have made the trip here, and the buzz in the air is palpable...  Lots of Utah and national media are milling about as well.

9:40 am – The Plaintiffs and their team arrive to rock star treatment from friends, family, and supporters waiting in the lobby.  I am inspired by their steadfast confidence.

9:45 am – The courtroom opens, and those of us with the “golden ticket” make our way into the courtroom, which is quickly standing room only.  Everyone else has to go to overflow rooms with closed circuit TVs.

10:00-11:00 am - The judges make their way in and the proceedings start.  The attorney for Utah stands up to defend Amendment 3 and is immediately peppered with questions from the judges.  Right off the bat, Judge Holmes wants to know how Amendment 3 is different from the ban on interracial marriage struck down in Loving v. Virginia.  Utah’s attorney does the best with what he has, which is not particularly convincing.

 Plaintiffs’ attorney stands up to defend marriage equality.  She stands up very well to the judges’ questions, which generally center on states’ power in this area.

 The attorney for Utah stands up one more time.  Judge Lucero asks a question that blows me away.  How is Amendment 3 different from Dredd Scott (the case holding that runaway slaves had no rights) if it reduces married same sex couples and their children to second-class citizenship when they move to Utah?  The State doesn’t have a great response.

11:10 am - Dozens of press and supporters gather on the courtroom steps to hear from Plaintiffs and their attorneys.  They come out to a thunderous round of applause.  The Plaintiff couples and their attorneys give brief and powerful statements.  While my cell phone battery has maddeningly died, the multitude of TV and photo cameras will certainly do the job for me!

3:00 pm - Back at the Denver airport.  Now its just wait (and wait, and wait!) for a decision.   It was good to be here today, and to know that marriage equality supporters put their best case forward!  

 For more information on this case, please visit: www.acluutah.org/legal-work/current-cases