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The big day is here. The first federal appellate case post-Windsor made its way through oral arguments this morning, and it was not without its own wave of drama.

Even before the arguments began, Utah officials backtracked on authority used in their briefs. Then, in oral arguments, the panel seemed to be deeply divided, with two judges sticking to their predicted ideological lines, and a third serving as the wildcard.

As the first of a coming wave of same-sex marriage appeals in this circuit, and many other circuit courts of appeal, this case is important as authority for the remaining cases, as well as a possible vehicle for a Supreme Court appeal.

O.K. Oklahoma -- U.S. District Judge Terence C. Kern overturned the state's gay marriage ban. However, Judge Kern is staying his decision pending appeal, according to The Washington Post.

Judge Kern's opinion in Bishop v. United States deals with "Part A" of the Oklahoma amendment. He used the rational basis test to determine that the ban is unconstitutional -- much to the chagrin of some Oklahoma politicians.

Oh, the good ol' Tenth Circuit. For a circuit that covers a geographically large portion of the United States, the case law coming out of there can sometimes not be as compelling as circuits with cities like New York or San Francisco. But, that doesn't mean all Tenth Circuit cases are folly. In fact, when they mean business, they get the whole country's attention.

Tenth Circuit in the News

With Utah's large Mormon population, we suppose it was just a matter of time before a polygamy case was heard. And just in time for the end of 2013, Judge Waddoups of the U.S. District Court for the District of Utah struck down Utah's bigamy statutes' cohabitation provision as unconstitutional.

10th Circuit Expedites Review of Utah's Same-Sex Marriage Ban

The Tenth Circuit will expedite its review of U.S. District Court Judge Robert J. Shelby's decision to quash Utah's same sex marriage ban.

The need for an expedited review follows SCOTUS's unanimous decision to put a hold on Judge Shelby's decision. The reasoning behind the High Court's quick decision is to let the lower courts delve into the constitutional issues of a state's power to limit marriage to a woman and a man, suggests SCOTUSblog.

So what does this mean for lawyers practicing in Utah and the Tenth Circuit?

Starkey v. Boulder Cty. Soc. Servs., No. 08-1013

In a 42 U.S.C. section 1983 action claiming that Defendant social services department deprived Plaintiffs of custody of their children based on Plaintiffs' religious beliefs, summary judgment for Defendants is affirmed where Plaintiffs failed to show that any false information from Defendants influenced the state court in issuing the various orders that interfered with Plaintiffs' family integrity.

Read Starkey v. Boulder Cty. Soc. Servs., No. 08-1013

Appellate Information

Filed June 29, 2009


Opinion by Judge Hartz


For Appellants:

Samuel Ventola, Ventola & Staggs P.C., Denver, CO

For Appellees:

Madeline J. Meacham, Deputy County Attorney, Boulder, CO

Shelly Stratton Bailey, Assistant County Attorney, Boulder, CO