Kitchen v. Herbert and Bishop v. Smith

Brief Filed: 3/14
Court: U.S. Court of Appeals for the Tenth Circuit
Year of Decision: 2014

Read the full-text amicus brief (PDF, 107KB)


Involves a federal challenge to Utah and Oklahoma’s laws prohibiting same-sex couples from marrying and recognition of the legal marriage of same-sex couples who married in other states.

Index Topic

Sexual Orientation (discrimination; same sex-marriage)


Utah Constitutional Amendment 3, passed by referendum in 2004, states that no union other than one between a man and a woman may be recognized as a marriage. Derek Kitchen and five co-plaintiffs took issue with this definition and filed a lawsuit in federal district court to challenge the gay marriage ban. In a December 2013 ruling, the court invalidated the amendment, finding that such a restriction was an affront to equal protection and the fundamental right to marry. Meanwhile, Mary Bishop and Sharon Baldwin also filed a federal suit to challenge a similar provision that was added to Oklahoma’s constitution by referendum in 2004. Like Utah’s district court, the Oklahoma district court found the amendment unconstitutional. Following the Supreme Court ruling in United States v. Windsor — which struck down part of the Defense of Marriage Act — these state cases are now both before the U.S. Court of Appeals for the Tenth Circuit, which will consider the constitutionality of a state’s decision to exclude same-sex unions from the definition of marriage.

APA's Position

APA filed a brief supporting the Utah and Oklahoma plaintiffs' fight for equality under the law in their respective challenges. As in prior APA briefs, scientific evidence was presented concerning sexual orientation and families relevant these combined cases. APA argues that 1) homosexuality is a normal expression of human sexuality, is generally not chosen, and is highly resistant to change; 2) that gay men and lesbians form stable, committed relationships that are equivalent to heterosexual relationships; 3) that the institution of marriage offers social, psychological and health benefits that are denied to same-sex couples who cannot legally marry; and, 4) there is no scientific basis for concluding that same-sex couples are any less fit or capable parents than heterosexual couples or that their children are any less psychologically healthy.

The brief further states that by devaluing and delegitimizing same-sex relationships, the Oklahoma and Utah laws compound and perpetuate the stigma historically attached to homosexuality.


On June 24, 2014, a three-judge panel for the Tenth Circuit issued a ruling that Utah and Oklahoma’s constitutional amendments barring marriage for same-sex couples violate the U.S. Constitution. The ruling is stayed pending appeal to the U.S. Supreme Court.