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The 10th Circuit Court of Appeals on Monday denied a motion to intervene in Utah's same-sex marriage case filed by the New York attorney who prevailed in getting the U.S. Supreme Court to strike down the federal Defense of Marriage Act.
Roberta A. Kaplan, representing three same-sex couples in Utah, had asked to be admitted as a party in the case and be allowed to participate in oral arguments, set for April 10. The couples are Douglas Wortham and Nicholas Nero; Lynn Beltran and Claudia O'Grady; and Stanford Rovig and Charles Fluke. The latter two couples married during the 17 days gay marriage was legal in Utah.
Attorneys for the state of Utah are expected to file their opening brief late Monday night. The plaintiffs' response is due Feb. 25.
Kaplan's motion said the couples asked the state and plaintiffs for consent to intervene but were rejected.
Kaplan said the couples do not believe the arguments made by attorneys or the ruling by U.S. District Court Judge Robert J. Shelby adequately addressed all the infirmities in Utah's constitutional ban. Specifically, Kaplan said there were problems with Section 2 of Amendment 3 — which denies any legal recognition of all forms of domestic unions, including legal marriages entered into in other states, involving gay couples.
"In a case of this significance and importance, which has the potential to shape the trajectory of the quest of gay people for full civil equality, having greater participation by affected parties and greater airing of the issues can only benefit this court by providing the widest range of arguments and perspectives available," Kaplan's motion said.
One of the couples in the Utah case, however, was married in Iowa and numerous references were made in briefs filed by the plaintiffs' attorneys to the fact that Utah law does not recognize marriages valid in other states or any other forms of committed relationships. Many references cited the U.S. Supreme Court decision, United States v. Windsor, in which Kaplan represented Edith Windsor, who sued after she had to pay inheritance taxes after her wife's death.
Kaplan said in her motion that if the court rejected the motion to intervene, she would file an amicus brief and request to be allowed to participate in oral argument.
Peggy A. Tomsic, one of the Utah plaintiffs' attorneys, said such filings were welcome.
"We have encouraged many individuals and organizations to file friend-of-the-court briefs, and we encourage these couples to do the same," Tomsic said.
So far, at least two motions requesting permission to file amicus briefs have been filed with the court.