On March 25, 2013, three same-sex couples residing in Utah, one of which was legally married in Iowa, filed a lawsuit in the United States District Court for the District of Utah under 42 U.S.C. § 1983 against the state of Utah. The plaintiffs, represented by private counsel, asked the court for a declaration that Amendment 3 to the Utah Constitution and Utah Code Ann. § 30-1-2(5) violated the Fourteenth Amendment's due process clause and equal protection clause by denying same-sex couples the opportunity to marry or have Utah recognize marriages entered into in other states. The plaintiffs asked for a permanent injunction preventing the defendants from enforcing both the amendment and the law and compelling the defendants to recognize the Iowa marriage as legal in Utah. The plaintiffs also sought attorney's fees.

Section 31-1-2 of the Utah Code was amended in 1977, to state that marriages "between persons of the same sex" were "prohibited and declared void." In 2004, the legislature passed section 30-1-4.1 of the Utah Code, which provides:

(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 woman because they are married.

In addition, the Utah Constitution was amended by referendum on Nov. 2, 2004 (with 66% of the voters approving the amendment) to include the following text:

(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.

In this case, District Judge Robert Shelby, held on December 20, 2013, decided the case for the plaintiffs, declaring the same-sex marriage ban unconstitutional and enjoining the state from enforcing the relevant sections of the Utah Code and Constitution. Given the Supreme Court's opinion in Windsor v. United States, the court held, "the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law." The plaintiffs had, Judge Shelby found, a fundamental right to marry, and an inability to "develop the type of intimate bond necessary to sustain a marriage with a person of the opposite sex." Moreover, neither Utah's law nor the constitutional amendment served a rational basis: two of the asserted justifications (promoting responsible procreation within marriage; promoting the ideal arrangement that children be raised by both a father and a mother in a stable family unit) were not served by the ban on same-sex marriage, and the justification of preserving the traditional definition of marriage was insufficiently weighty. The court observed that "The State's position appears to be based on an assumption that the availability of same-sex marriage will somehow cause opposite-sex couples to forego marriage," but found that view unsupported by evidence, whereas the harm experienced by same-sex couples was "undisputed." The court compared Utah's arguments to those made by Virginia in 1966, before the Supreme Court, defending the ban on interracial marriage.

The state sought a stay and filed an appeal, but Judge Shelby denied the application, as did the 10th Circuit Court of Appeals. While the stay applications (there were several, on different grounds) were pending, about 1300 Utah couples got married. The state applied to the Supreme Court for a stay, and on January 6, 2014, that was granted, "pending final disposition of the appeal" before the 10th Circuit. This raised the issue of the status of the 1300 marriages celebrated in the prior two weeks. On January 8, the Utah Attorney General, Sean Reyes, declined to state whether the marriages remained effective, but Governor Gary Herbert's child of staff that same day directed all state agencies that recognition of the marriages was "ON HOLD until further notice." That is, "For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued."

U.S. Attorney General Eric Holder took a different position, however: he announced on January 10 that "for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages." Several states have followed the same approach.

On June 25, 2014, the 10th Circuit Court of Appeals affirmed. Utah's ban on same-sex marriage, the court held in an opinion by Judge Lucero, violated the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state's marital laws, protected by the 14th Amendment under the doctrine of substantive due process. Kitchen v. Herbert, 2014 WL 2868044 (10th Circuit 2014). Judge Kelly dissented.

The Court of Appeals stayed operation of its decision pending filing/disposition of a petition seeking Supreme Court review. On October 6, 2014, the U.S. Supreme Court denied the petition for writ of certiorari. Herbert v. Kitchen, 135 S. Ct. 271 (2014). As a result, the 10th Circuit lifted its stay and Utah clerks county began issuing marriage licenses to same-sex couples.

Katrina Fahey - 10/11/2013
- 06/25/2014
David Hamstra - 04/16/2015


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