Civil and Human Rights

Kitchen v. Herbert and Bishop v. Smith

Kitchen v. Herbert and Bishop v. Smith are federal-court challenges to discriminatory marriage laws in Utah and Oklahoma, respectively.

Case Summary

In December 2013, the district court in Kitchen applied the Supreme Court’s June 2013 decision in United States v. Windsor, which struck down part of the federal “Defense of Marriage Act,” and ruled that Utah’s prohibition of same-sex marriages is unconstitutional.  The state appealed to the United States Court of Appeals for the Tenth Circuit. On January 6, 2014, the U.S. Supreme Court granted a stay of the district court’s order pending the appellate court’s decision.

Similarly, on January 14, 2014, a district court in Oklahoma declared that state’s same-sex marriage ban unconstitutional.  Oklahoma appealed the decision to the Tenth Circuit.

On March 4, 2014, Constitutional Accountability Center and the Cato Institute jointly filed a friend of the court brief with the Tenth Circuit in Kitchen and Bishop, urging the court of appeals to uphold the lower courts’ decisions.  Our brief demonstrates that the text and history of the Fourteenth Amendment guarantee equality under the law and require equality of rights for all classes of persons and groups, including gay men and lesbians.  The framers of the Fourteenth Amendment also recognized the right to marry as a basic civil right of all persons.  As our brief demonstrates, the Amendment’s sweeping guarantee of equality unambiguously applies to the plaintiffs in Kitchen and Bishop, and prohibits discriminatory marriage laws.

The same three-judge panel of the Tenth Circuit heard argument in Kitchen on April 10, 2014, and in Bishop on April 17, 2014.

On June 25, 2014, the Tenth Circuit issued its decision in Kitchen, affirming the lower court’s ruling, as we had urged in our brief.  The panel’s 2-1 decision, which marked the first time a federal appellate court has ruled on same-sex marriage since the Supreme Court’s decision in Windsor, declared that the Fourteenth Amendment “extends the guarantees of due process and equal protection to every person in every State of the Union,” and held that Utah’s discriminatory marriage laws violate the due process and equal protection rights of gay men and lesbians.

On July 18, 2014, the court issued a similar ruling in Bishop, upholding the lower court’s decision, and noting that its “merits disposition [in Bishop] is governed by our ruling in Kitchen v. Herbert.”

On October 6, 2014, the Supreme Court denied certiorari, thus allowing the 10th Circuit’s decision recognizing a constitutional right to same-sex marriage to stand, clearing the way for marriage equality in all of the states within that Circuit.

Case Timeline

  • March 4, 2014

    CAC co-files amicus brief with CATO Institute in the U.S. Court of Appeals for the 10th Circuit

    10th Circuit Amicus Brief

More from Civil and Human Rights

Civil and Human Rights
May 27, 2020

#PurpleChairChat Episode 4: Free Speech and Equality in the Digital Age

By: David H. Gans, Praveen Fernandes
Civil and Human Rights
May 21, 2020

RELEASE: NEW ISSUE BRIEF: Speech and Its Relationship to Equality: Constitutional Values in the Digital Age

“When confronting lies, hate, and harmful propaganda online—which we can expect to reach a fever...
By: David H. Gans
Civil and Human Rights
May 21, 2020

ISSUE BRIEF: Speech and Its Relationship to Equality: Constitutional Values in the Digital Age

Understanding the constitutional duty to strike a balance between speech and equality can help inform...
By: David H. Gans
Civil and Human Rights
April 8, 2020

The Contraceptive Mandate Returns to the Court for a Third Time

Since President Trump entered office, his Administration has relentlessly sought to undermine the Patient Protection...
By: Rebecca Damante
Civil and Human Rights
U.S. Supreme Court

Little Sisters of the Poor v. Pennsylvania; Donald J. Trump v. Pennsylvania

In Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania, the Supreme Court is considering whether agency rules, which provide an unconditional religious exemption from the Affordable Care Act’s contraceptive coverage requirement to not-for-profit,...
Civil and Human Rights
February 29, 2020

Justices to hear first major abortion case of Trump era

The Hill
Measures like Louisiana’s are simply “arbitrary ways to make it harder for patients to obtain...
By: David H. Gans, By John Kruzel