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Topics In the News
NCLR Joins Utah Marriage Case
Posted by: Claude J. Summers on 01/09/14
Last updated on: 01/09/14
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NCLR Executive Director Kate Kendell.

On January 8, 2014, a text entry in the docket for the Tenth Circuit Court of Appeals noted that attorneys from the National Center for Lesbian Rights (NCLR) have joined the challenge to Utah's same-sex marriage ban as co-counsel to the plaintiffs in Kitchen v. Herbert. The entry reads as follows: "Notice of appearance filed by Mr. Shannon Price Minter and Ms. Kathryn Kendell for Laurie Wood, Moudi Sbeity, Kody Patridge, Derek Kitchen, Kate Call and Karen Archer." The entry of NCLR signals an important development in this case, which has the potential to be heard by the Supreme Court and thereby to invalidate bans of same-sex marriage throughout the country.

Scottie Thomaston at Equality on Trial first reported on the text entry, which was later confirmed by Minter, NCLR's legal director, who said, "[W]e are thrilled to be joining Peggy Tomsic and her team at Magleby|Greenwood P.C. in this historic litigation. The case is especially meaningful to our Executive Director [Kate Kendell], who grew up in Utah, and whose daughter and her partner were among the hundreds of same-sex couples who recently married there."

Lead counsel Peggy Tomsic of Magleby & Greenwood, P.C. welcomed the participation of NCLR: "We believe it is in our clients' best interest now that the case is on appeal, and particularly since it is on an expedited briefing schedule, to have a national organization with significant experience litigating and winning marriage equality cases to enhance our perspective and fire-power as we move forward."

Tomsic added, "We also wanted a national organization that has a real connection with Utah. Kate Kendell, NCLR's Executive Director, was raised in Utah, worked here as a lawyer for many years, and has a daughter living here who finally had the opportunity to marry the love of her life when Judge Shelby issued his ruling."

The case at the Tenth Circuit is an appeal of the decision handed down on December 20, 2013 by U.S. District Judge Robert Shelby that ruled Utah's ban on same-sex marriage unconstitutional. Relying heavily on the U.S. Supreme Court's rulings in Windsor v. U.S.A. and Lawrence v. Texas, Shelby wrote that the ban denies gay and lesbian couples their rights to due process and equal protection. "The state's current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason," he asserted.

Among the important points established in the ruling is that marriage is a fundamental right to which homosexual as well as heterosexual couples are entitled. Although Judge Shelby considered the question of whether laws effecting gay people should be given heightened scrutiny, he ruled that the Utah marriage laws fail to pass constitutional muster even on the most deferential level of review.

Since Judge Shelby did not stay his ruling and the Tenth Circuit subsequently declined to issue a stay, couples were able to apply for marriage licenses and marry immediately after the ruling was issued. Between the December 20 decision and January 6, 2014, when the U.S. Supreme Court stayed the ruling pending a decision by the Tenth Circuit, more than 1,300 same-sex couples wed in Utah.

Utah's appeal to the Tenth Circuit has been expedited. The opening brief is due to be filed on January 27 and briefing is expected to be concluded by February 25.

NCLR, which was founded as the Lesbian Rights Project by Roberta Achtenberg and Donna Hitchens in 1977, brings to the litigation a wealth of experience in the struggle for marriage equality.

Renamed the National Center for Lesbian Rights in 1989, the organization now defines itself as a non-profit public interest law firm "committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education."

In 1994, Kate Kendell joined NCLR as Legal Director; in 1998, she became Executive Director. Kendall came to NCLR from her position as a staff attorney for the ACLU of Utah, where she litigated a variety of high profile cases. At NCLR, Kendell has propelled the organization into a nationally recognized leader in protecting and expanding glbtq rights through legal action.

Legal director Shannon Price Minter joined the organization in 1993 as a recent graduate of Cornell University Law School. As an intern, Minter helped spearhead a legal aid program for young people who had been forcibly hospitalized for psychological treatment to change their gender identity, an issue of particular interest for Minter, who attended Cornell as a woman but subsequently transitioned to become a man.

During his years at NCLR, Minter has been involved in several high profile cases. In 2001, for example, Minter represented Sharon Smith in her successful attempt to win the right to file a wrongful death suit after her partner, Diane Whipple, was mauled to death by a neighbor's dogs in San Francisco.

He also gained national recognition in 2008 when he argued the "Marriage Case" before the California Supreme Court, which resulted in marriage equality in the state before the passage of Proposition 8. In 2009, he appeared before the Court in the unsuccessful effort to nullify Proposition 8, the initiative that overturned marriage equality in the Golden State.

Although NCLR is best known for its work on behalf of marriage equality in California, it has been involved in seeking recognition of glbtq relationships for a long time. It has also either represented plaintiffs or filed amici curiae briefs in the marriage equality suits in numerous other states, including those that resulted in victory in Connecticut, New Jersey, Iowa, and New Mexico, and two that are now pending in Tennessee and Idaho.

In the video below, from 2009, Kate Kendell explains "Why Marriage Matters."

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