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Civil Rights Litigation Clearinghouse
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Case Name Kitchen v. Herbert PB-UT-0001
Docket / Court 2:13-cv-00217-RJS ( D. Utah )
State/Territory Utah
Case Type(s) Public Benefits / Government Services
Special Collection Same-Sex Marriage
Attorney Organization National Center for Lesbian Rights (NCLR)
Case Summary
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 ... read more >
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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Issues and Causes of Action
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Affected Gender
Constitutional Clause
Due Process
Equal Protection
Content of Injunction
Discrimination Prohibition
Sex discrimination
Sexual orientatation
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Plaintiff Type
Private Plaintiff
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
42 U.S.C. § 1983
Defendant(s) Clerk of Salt Lake County
State of Utah
Plaintiff Description Plaintiffs are couples in committed gay and lesbian relationships who wish to get legally married in Utah.
Indexed Lawyer Organizations National Center for Lesbian Rights (NCLR)
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Declaratory Judgment
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Order Duration 2013 - n/a
Filed 03/25/2013
Case Ongoing No
Case Listing PB-UT-0002 : Evans v. Utah (D. Utah)
PB-CO-0006 : Burns v. Hickenlooper (D. Colo.)
Additional Resources
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  See this case at (May provide additional documents and, for active cases, real-time alerts)
2:13−cv−00217 (D. Utah)
PB-UT-0001-9000.pdf | Detail
Date: 10/06/2014
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 2]
PB-UT-0001-0001.pdf | Detail
Date: 03/25/2013
Source: PACER [Public Access to Court Electronic Records]
Memorandum Decision and Order [Granting Plaintiffs' Motion for Summary Judgment] (961 F.Supp.2d 1181) (D. Utah)
PB-UT-0001-0002.pdf | WESTLAW| LEXIS | Detail
Date: 12/20/2013
Source: Westlaw
Order on Motion to Stay (2013 WL 6834634) (D. Utah)
PB-UT-0001-0003.pdf | WESTLAW | Detail
Date: 12/23/2013
Source: Westlaw
PB-UT-0001-0004.pdf | Detail
Date: 12/23/2013
Source: PACER [Public Access to Court Electronic Records]
Defendant's Motion to Stay Pending Appeal Before the Honorable Robert J. Shelby United States District Court Judge [ECF# 01019177091]
PB-UT-0001-0010.pdf | Detail
Date: 12/23/2013
Source: PACER [Public Access to Court Electronic Records]
PB-UT-0001-0005.pdf | Detail
Date: 12/24/2013
Source: PACER [Public Access to Court Electronic Records]
Order in Pending Case [Stay granted] (134 S.Ct. 893)
PB-UT-0001-0009.pdf | WESTLAW | Detail
Date: 01/06/2014
Source: Westlaw
Governor's Office Gives Direction to State Agencies on Same-Sex Marriages
PB-UT-0001-0006.pdf | Detail
Date: 01/08/2014
Source: Defendant or Defendant's Counsel
To all County Attorneys and County Clerks
PB-UT-0001-0007.pdf | Detail
Date: 01/08/2014
Source: Defendant or Defendant's Counsel
PB-UT-0001-0011.pdf | External Link | Detail
Date: 01/08/2014
Source: Defendant or Defendant's Counsel
Statement by Attorney General Eric Holder on Federal Recognition of Same-Sex Marriages in Utah
PB-UT-0001-0008.pdf | Detail
Date: 01/10/2014
Brief of Appellants Gary R. Herbert and Sean D. Reyes [Ct. of App. ECF# 01019196784]
PB-UT-0001-0013.pdf | Detail
Date: 02/03/2014
Source: PACER [Public Access to Court Electronic Records]
Opinion (755 F.3d 1193)
PB-UT-0001-0012.pdf | WESTLAW| LEXIS | Detail
Date: 06/25/2014
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Bacharach, Robert Edwin (W.D. Okla., Tenth Circuit) show/hide docs
Holmes, Jerome A. (Tenth Circuit) show/hide docs
Kelly, Paul Joseph Jr. (Tenth Circuit) show/hide docs
Lucero, Carlos F. (Tenth Circuit) show/hide docs
Shelby, Robert James (D. Utah) show/hide docs
PB-UT-0001-0002 | PB-UT-0001-0003 | PB-UT-0001-0010 | PB-UT-0001-9000
Sotomayor, Sonia (S.D.N.Y., Second Circuit, SCOTUS) show/hide docs
Plaintiff's Lawyers Magleby, James E (Utah) show/hide docs
PB-UT-0001-0001 | PB-UT-0001-0004 | PB-UT-0001-9000
Parrish, Jennifer F (Utah) show/hide docs
PB-UT-0001-0001 | PB-UT-0001-0004 | PB-UT-0001-0010 | PB-UT-0001-9000
Tomsic, Peggy A (Utah) show/hide docs
PB-UT-0001-0001 | PB-UT-0001-0004 | PB-UT-0001-0010 | PB-UT-0001-9000
Defendant's Lawyers Chamness, Ralph E. (Utah) show/hide docs
PB-UT-0001-0010 | PB-UT-0001-9000
Goddard, Darcy M. (Utah) show/hide docs
PB-UT-0001-0010 | PB-UT-0001-9000
Lott, Philip S. (Utah) show/hide docs
PB-UT-0001-0010 | PB-UT-0001-9000
Purser, Stanford Edward (Utah) show/hide docs
Reyes, Sean D. (Utah) show/hide docs
PB-UT-0001-0007 | PB-UT-0001-0011
Schaerr, Gene C. (District of Columbia) show/hide docs
Tarbet, Philip S. (Utah) show/hide docs
Walkenhorst, Steve (Utah) show/hide docs
Other Lawyers Babione, Byron J. (Arizona) show/hide docs
Block, Joshua A (New York) show/hide docs
Holder, Eric H. Jr. (District of Columbia) show/hide docs
Kendell, Kathryn D. (California) show/hide docs
Mejia, John (Utah) show/hide docs
Mylar, Frank D. (Utah) show/hide docs

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