10th Circuit Court denies Windsor lawyer’s request to intervene in Utah same-sex marriage appeal

I a very brief order, the clerk of the 10th Circuit Court of Appeals announced that the court has denied a motion by Roberta Kaplan to intervene in the appeal of Judge Robert Shelby’s ruling in Kitchen v. Herbert.

“This matter is before the court on the ‘Proposed Intervenor Couples’ opposed motion to intervene and to participate in oral argument. At the direction of the court, and upon its review, the motion is denied,” the order reads in full.

Kaplan is the lawyer who won the U.S. Supreme Court challenge of the so-called Defense of Marriage Act in June of last year. She had filed a motion in the 10th Circuit Court of Appeals to intervene, representing three Utah same-sex couples who were not part of the original case. She argued 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.

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

The three couples joining Kaplan were 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 argued 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 had wished 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 said earlier that she intended to file an amicus brief with the court if the intervention was denied.

The state of Utah’s brief is due today.

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