Federal appeals court has another big same-sex marriage case pending

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SALT LAKE CITY -- The 10th U.S. Circuit Court of Appeals leveled an historic decision on same-sex marriage, but it's not the only Utah marriage case pending.

The federal appeals court is being asked to decide whether Utah should be forced to recognize more than 1,200 same-sex marriages performed after Amendment 3 was overturned.

"It gives us a lot of confidence that we'll receive a positive ruling in our case," ACLU of Utah Legal Director John Mejia told FOX 13.

On Wednesday, the 10th Circuit Court ruled that Utah's ban on same-sex marriage was unconstitutional. The ruling upheld a decision by a federal judge in Utah who declared Amendment 3 violated gay and lesbian couples' right to equal protection and due process under the U.S. Constitution.

After U.S. District Court Judge Robert Shelby's ruling on Dec. 20, 2013, gay and lesbian couples rushed to county clerk's offices to marry. FOX 13 examined public records and marriage licenses and found more than 1,200 married in 17 days, before the U.S. Supreme Court halted it pending an appeal.

A detailed account of same-sex marriages performed in Utah's 29 counties during the 17-days it was allowed.

A detailed account of same-sex marriages performed in Utah's 29 counties during the 17-days it was allowed.

Governor Gary Herbert ordered state agencies not to recognize those marriages pending an appeal of Amendment 3 to the 10th Circuit Court. The ACLU sued on behalf of four couples. U.S. District Court Judge Dale Kimball sided with them, ordering Utah to recognize the marriages.

Utah appealed the judge's order to the 10th Circuit.

"Either the 10th Circuit vacates its temporary stay and orders that Utah start recognizing these marriages, or the 10th Circuit could say, 'Well, we're going to hold off having this order go into effect,'" Mejia said.

The Utah Attorney General's Office said that because the Amendment 3 case and the marriage recognition case are separate, Wednesday's decision "does not immediately impact the (marriage recognition) case even though they are related by subject matter and circumstance."

The 10th Circuit set a series of deadlines for filings on the marriage recognition case, but still no ruling. Mejia said they await a decision -- noting that if the state loses it may go to the U.S. Supreme Court again.

At his monthly KUED news conference, Gov. Herbert was asked if Utah would recognize the marriages if the state lost the Amendment 3 case.

"What I believe we will do is follow the law of the land. I think that's my responsibility as the governor, as the executive branch," he said.

Meanwhile, the state is considering its next options in the Amendment 3 case. The Utah Attorney General's Office said no formal decision has been made on an appeal. No decision has been made on whether the outside counsel hired to litigate the case will remain in place.

Gene Schaerr and two other attorneys were hired at a cost of $300,000 to defend the state in the Amendment 3 case. Schaerr was contracted through the 10th Circuit appeal. Missy Larsen, a spokeswoman for Utah Attorney General Sean Reyes, said there is an option to extend the contract through the U.S. Supreme Court appeal.

Reyes and Schaerr will talk about the possibility of extending that contract, she said.

There are also changes taking place on the plaintiff's side. Restore Our Humanity, the group that built the case against Amendment 3, said Thursday it is stepping away from the case as it advances out of Utah.

"Restore Our Humanity is a tiny, volunteer, grass-roots organization which has never sought the national spotlight. Our focus as an organization always has been to serve the diverse communities of, and effect real, lasting, positive change here in Utah," the group said in a statement.

The group found the couples and the law firm in the case that became known as Kitchen v. Herbert. National gay rights groups are now expected to have more of a role as the case moves toward the U.S. Supreme Court.

"Restore Our Humanity is honored to pass the torch of Kitchen v. Herbert to these organizations," the group said.

Restore Our Humanity spokesman Matthew Spencer said the group would still raise money to pay the estimated $700,000 in legal bills racked up by the plaintiffs.

The group has so far raised $130,000  -- $100,000 of which has been given to the law firm for its costs, Spencer said.


    • glock

      The governor and the AG have a sworn duty to uphold and defend the Utah Constitution. it’s out of their hands. They are required to fight until the Supreme Court strikes down the Amendment.

  • Trish Ramirez

    What a waste of taxpayer money. And so hateful. Look at what’s going on across the nation. This is ultimately going to be decided in FAVOR of LGBT marriage rights and all of this money and time will have been wasted and the government is going to look like a bunch of hateful fools.

    • Patriot

      Trisha, hoped we had heard the last diatribe from you. Your alphabet soup group has only raised $130,000? I guess that’s a lot from 100 individuals. Now you have to bring in the national out of state left wing liberals to fight against us? Come on Patricia, we Utahn’s from all religions and all races will gladly donate $1,000,000 in one morning to defend our values, our morals, our families, our religion, and our children from your unnatural and immoral way of life. You now have our attention and “We the people”…. have only begun to stand up for what is right. The message has been sent to our elected officials to spend all that is necessary of “our taxes” to fight this battle which you have started and we will finish at the US Supreme Court. Thank you for helping Christians from throughout the United States crystalize our resolve to stand for the morals of our great nation. We hope you will realize the error of your ways and that you have been deceived. As the sun rises in Utah today, you remain un-married as a group! Utah law prevails as does the will of the people. :-)

      • Pastor's Son

        “Amendment I

        Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

        There are more religions that Christianity in this country, and some of them are very accepting of the LGBT community. Using Christian values as a basis for what is normal, moral, or otherwise right and using religion as an argument for a law goes against the “Freedom of Religion”.

        Extract from Declaration of Independence:
        “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”

        The arguments you used assumed that one or more of the following is the case:
        a) all Utah residents are against gay marriage, which would therefore render this whole debacle a moot point.
        b) Only people against gay marriage pay taxes in this state, since you said ‘ The message has been sent to our elected officials to spend all that is necessary of “our taxes” to fight this battle’.
        c) No Christian does anything unnatural or immoral, as defined by The Holy Bible, which includes anything described as an abomination.

        Let me dissect these. First, the fact that there have been 1,200 gay marriages in Utah automatically proves the first one incorrect. Second, gay people pay taxes just as straight people do, so to be fair in this fight, the government should not use ‘all that is necessary of “our taxes”‘ because some of it came from people it would be fighting against. Third, let me list a few things that I know most Christians do at least one of that is considered immoral or an abomination.

        From The Ten Commandments:
        1) “Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.” I know many who pray or worship in front of a carving, bust, stained glass, etc. image of Jesus, Angels, etc. which fall into the “likeness of any thing that is in heaven above”.
        2) Thou shalt not take the name of the Lord thy God in vain. Many do.
        3) Remember the Sabbath day, to keep it holy. Don’t a lot of Christians end up working on the Sabbath day?
        4) Thou shalt not bear false witness against thy neighbor. Basically, don’t lie… period. Haven’t many told lies at some point?
        5) Thou shall not covet… If you have ever been jealous of or wanted something that was someone else’s, you have done this.

        Leviticus says not to eat shellfish (Lev. 11:9-12), use mixed seed or fabrics (Lev. 19:19), harvest the corners of fields (Lev. 19:9), and that homosexuality is wrong (Lev. 18:22; 20:13). If homosexuality is wrong because Leviticus says so, then shouldn’t we also obey the other laws about shellfish, seed, fabrics, and fields because that is in Leviticus as well? If not, then why not? Why would Christians pick and choose what parts of the Bible to follow? Most clothing today is of mixed fabrics, fields are completely harvested (including the corners, and a good percentage of people eat one type of shellfish or another.

        Let me ask you one more thing before I conclude. In the bible there are verses that state that a child should be stoned to death if they disobey, or that a woman should be stoned to death if not a virgin on their wedding day. Would you advocate that this is something that should be done today? If you said yes, very few children would live past 5 years old, and there would be fewer women in the world. If you said no, but still say homosexuality is wrong while wearing mixed fabrics, eating shellfish, being jealous, lying, working on the Sabbath day, or praying in front of an idol meant to represent that which is in heaven is okay, then you are a hypocrite, not a Christian.

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