‘Windsor’ lawyer moves to intervene in Utah same-sex marriage case

The lawyer who won the U.S. Supreme Court challenge of the so-called Defense of Marriage Act filed a motion in the 10th Circuit Court of Appeals to intervene in Utah’s Kitchen v. Herbert. Roberta Kaplan represents three Utah same-sex couples, who argue that District Judge Robert Shelby’s ruling that Amendment 3 and Utah’s laws that restrict marriage to male-female couples violate the U.S. Constitution did not go far enough.

A motion of intervention does not require notification of either party, but the intervenor must have a direct interest in the outcome of the court’s decision.

Kaplan acknowledges that the intervention in the appeal would be considered an “exceptional case.” Her clients’ concerns are about other sections of Utah law that prevent recognition of same-sex couples not considered by Shelby in his ruling.

The rules of the 10th Circuit Court of Appeals likely prevent arguments outside what were brought to the circuit court before the ruling. That would disallow amicus briefs that argue points outside the original arguments and the decision. A motion to intervene can allow other arguments.

The three couples joining Kaplan are long-time activist Doug Wortham and his partner of 30 years, Nick Nero; STD and HIV/AIDS program manager at Salt Lake Valley Health Department and QSaltLake columnist Lynn Beltran and her wife Claudia O’Grady who were married Dec. 23 in Salt Lake County; and Stan Rovig and Charles Fluke.

The couples argue that any and all laws on the Utah books that treat same-sex couples any differently than opposite-sex couples should be included in any decision made by the Circuit Court of Appeals.

Judge Shelby, during the state’s request that he stay his appeal, announced that his ruling, though it didn’t specifically specify all laws that might treat couples differently, his intent in the ruling was that any law restricting same-sex couples from marrying violated the U.S. Constitution.

The couples wish to demonstrate that Section 2 of Amendment 3 that disallows civil unions and anything similar to marriage is also unconstitutional. They also argue that Utah law, Section 30-1-4.1(1)(b), that states, “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 a woman because they are married,” should also be covered by a ruling by the circuit court.

Kaplan is representing the three couples on a pro bono basis.

The state’s principle brief is due Monday, Feb. 3.

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