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Kitchen v. Herbert and Bishop v. Smith (10th Cir.)

Kitchen v. Herbert and Bishop v. Smith are federal-court challenges to discriminatory marriage laws in Utah and Oklahoma, respectively.  In December 2013, the district court in Kitchen applied the Supreme Court’s June 2013 decision in United States v. Windsor, which struck down part of the federal “Defense of Marriage Act,” and ruled that Utah’s prohibition of same-sex marriages is unconstitutional.  The state appealed to the United States Court of Appeals for the Tenth Circuit. On January 6, 2014, the U.S. Supreme Court granted a stay of the district court’s order pending the appellate court’s decision.

Similarly, on January 14, 2014, a district court in Oklahoma declared that state’s same-sex marriage ban unconstitutional.  Oklahoma appealed the decision to the Tenth Circuit.  

On March 4, 2014, Constitutional Accountability Center and the Cato Institute jointly filed a friend of the court brief with the Tenth Circuit in Kitchen and Bishop, urging the court of appeals to uphold the lower courts’ decisions.  Our brief demonstrates that the text and history of the Fourteenth Amendment guarantee equality under the law and require equality of rights for all classes of persons and groups, including gay men and lesbians.  The framers of the Fourteenth Amendment also recognized the right to marry as a basic civil right of all persons.  As our brief demonstrates, the Amendment’s sweeping guarantee of equality unambiguously applies to the plaintiffs in Kitchen and Bishop, and prohibits discriminatory marriage laws.

The same three-judge panel of the Tenth Circuit heard argument in Kitchen on April 10, 2014, and in Bishop on April 17, 2014.

On June 25, 2014, the Tenth Circuit issued its decision in Kitchen, affirming the lower court’s ruling, as we had urged in our brief.  The panel’s 2-1 decision, which marked the first time a federal appellate court has ruled on same-sex marriage since the Supreme Court’s decision in Windsor, declared that the Fourteenth Amendment “extends the guarantees of due process and equal protection to every person in every State of the Union,” and held that Utah’s discriminatory marriage laws violate the due process and equal protection rights of gay men and lesbians.  Read CAC’s reaction to the Kitchen decision here.

On July 18, 2014, the court issued a similar ruling in Bishop, upholding the lower court’s decision, and noting that its “merits disposition [in Bishop] is governed by our ruling in Kitchen v. Herbert.”

On October 6, 2014, the Supreme Court denied certiorari, thus allowing the 10th Circuit’s decision recognizing a constitutional right to same-sex marriage to stand, clearing the way for marriage equality in all of the states within that Circuit.