In the absence of a stay from SCOTUS, the Tenth Circuit's ruling in Kitchen v Herbert was set to go into effect at 10:00 am EST today. It is 13:02 EST, and, as yet, I haven't seen any news report on whether SCOTUS has granted or denied a stay in this case. Does anyone know if the decision has gone into effect?

Edit: Kitchen v Herbert is a case decided by the Tenth Circuit affirming the judgment of the District Court that Utah's same-sex marriage bans constituted a violation of Due Process and Equal Protection, applying strict and heightened scrutiny respectively to the claims. It was decided by a panel 2-1 and will not be heard en banc.

  • It would help the question if you could summarize what Kitchen v Herbert is.
    – user1530
    Jul 21, 2014 at 18:01

1 Answer 1


According to Wikipedia:

On June 25, Tenth Circuit affirmed the judgment of the district court but stayed their mandate pending petition for writ of certiorari from the Supreme Court.[64] The ruling applies to all states in its jurisdiction:[65][66] Colorado, Kansas, New Mexico, Oklahoma, Wyoming, and Utah,[67] of which all but New Mexico ban same-sex marriage. Boulder County, Colorado began issuing marriage licenses despite the stay, followed by Denver and Pueblo Counties in July.

My non-lawyer take on that is that local governments can make a call prior to the Supreme Court to allow gay marriage. Barring that, they have to wait for the SC decision which appears to be pending:

On July 9, State Attorney General Sean Reyes' office said that it will skip en banc hearing by the full Tenth Circuit and will instead file for review directly to the Supreme Court in the next couple of weeks. If the Supreme Court declines to review the case, the Tenth Circuit's ruling will be final.[71] The Supreme Court could decide as early as late September.

Summary: No, it hasn't gone into effect. They are waiting on the Supreme Court.

  • It'd be worth adding the timeframe here - the Supreme Court is out for the summer, and (I think?) has been since before June 25th - or at least not taking new cases. So when could the Tenth Circuit expect to know what SCOTUS will do?
    – Bobson
    Jul 21, 2014 at 19:29
  • @Bobson does anyone know when to expect stuff from SCOTUS? :) Anyways, I think that second quote answers it as best as I can...ie, it could be as early as late Sept.
    – user1530
    Jul 21, 2014 at 19:32
  • Oops, I missed that bit. I was thinking just in terms of "SCOTUS will actually get the petition when they come back in session on...." But "late September" is good.
    – Bobson
    Jul 21, 2014 at 19:41
  • This is correct... though the reason they are skipping the 10 circuit is because they declined to review the decision again. Even if they had the case has not really changed from what they had already decided was unconstitutional. Jul 21, 2014 at 19:51

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