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Utah governor says recognition of same-sex marriages is on hold pending Tenth Circuit appeal

LGBT Legal Cases Marriage equality Marriage Equality Trials

Writing that his decision will affect “real people’s lives”, Governor Gary Herbert of Utah has announced in an email to cabinet members that same-sex marriages are “on hold” pending resolution of the Tenth Circuit appeal in the same-sex marriage case.

The relevant part of the memo is here:

Based on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.

Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.

Legal observers had been awaiting the memo since the Supreme Court’s issuance of a stay, which put already-performed marriages in legal limbo. The memo does suggest that the legal status of same-sex marriages that have been performed will have to be decided by a court, and can’t be definitively resolved by the memo. By some accounts, over a thousand marriage licenses were handed out pursuant to the federal court’s order invalidating the same-sex marriage ban. With a stay in place now, there are serious questions whether those couples are entitled to recognition and benefits, since the marriages were performed legally.

With the legal rights of these couples now being placed on hold, further litigation is likely.

UPDATE 2:13PM ET: Utah’s newly-appointed attorney general has issued a statement:

Utah Attorney General Sean D. Reyes official statement regarding status of marriages of same sex couples in Utah

“We understand that this is a matter of great public import that impacts lives on a very personal basis. Prior to and since the U.S. Supreme Court stay of the district court’s injunction in Kitchen v. Herbert, our office has been researching the proper legal course to address this uniquely challenging issue without any clear precedent to guide us.

We are unable to reach a legal conclusion as to the ultimate validity of marriage between persons of the same sex who completed their marriage ceremony in Utah between Dec 20, 2013 and Jan. 6, 2014. That question remains unanswered and the answer will depend on the result of the appeal process.

The Office of the Attorney General has advised the Governor in this case and will continue to work with the Governor and the individual agencies as they evaluate the application of specific policies and benefits within their agencies. A review team has been established to advise on a case-by-case basis.

The stay means that Utah’s laws defining marriage, including Amendment 3 are again in effect and the county clerks in all of Utah’s 29 counties, since the entry of the stay on January 6, are unable to issue licenses to marry persons of the same sex.

The State can neither recognize nor confer new marital benefits. While the ultimate validity of such marriages is subject to the decision of a higher court, it is clear that the State is bound by law to limit any benefits attaching after the stay.

We acknowledge that this is a very difficult situation for many. It was the reason our office sought the stay of the district court’s decision immediately. We wanted to avoid the untenable situation in which many of our citizens find themselves. We are diligently seeking certainty for all Utah s through proper and orderly legal process.

Thanks to Kathleen Perrin for this filing

Help us travel to Denver this spring to cover oral arguments in the Utah marriage equality case. You won’t regret it, and you can help EqualityOnTrial be a part of history in the making. Please consider making a tax-deductible donation to EqualityOnTrial in the new year to help us continue this mission–any amount helps!

133 Comments

  • 1. sfbob  |  January 8, 2014 at 10:39 am

    Further litigation is likely? No, further litigation is absolutely guaranteed.

  • 2. Scottie Thomaston  |  January 8, 2014 at 10:48 am

    I think you're right. I just felt awkward saying something so definitive when a new lawsuit hasn't been filed yet.

  • 3. David  |  January 8, 2014 at 10:49 am

    While I vehemently disagree with the governor's position on the issue, I can understand why he would do this and I'm glad the e-mail was respectfully written.

  • 4. sfbob  |  January 8, 2014 at 10:55 am

    Oh , I hear ya Scottie. I figured that as a commenter I could let it fly. So I did.

  • 5. Corey  |  January 8, 2014 at 10:55 am

    I think this move is just more ammunition for his enemies.

    Consider: Utah begged for a stay in order to prevent the harm caused by rescinding recognition of marriages; as soon as the stay is granted, Utah deliberately causes that very harm. That says "animus" in large, neon letters.

  • 6. Dr. Z  |  January 8, 2014 at 11:12 am

    Go directly to SCOTUS, do not pass Go, do not collect $200.

  • 7. Bruno71  |  January 8, 2014 at 11:14 am

    Not surprising, of course. Hopefully the couples involved will have their marriages "reinstated" after the 10th Circuit rules (and SCOTUS denies cert).

  • 8. Dr. Z  |  January 8, 2014 at 11:20 am

    Actually if he'd dissed the couples it would have been bad for Utah's case. It would have demonstrated animus.

    And I doubt it makes the couples feel better that the letter was"respectfully" written. Refusal to recognize their marriages is inherently disrespectful no matter how flowerly the language Herbie used.

  • 9. Zack12  |  January 8, 2014 at 11:22 am

    I don't give a crap if it was respectfully written or not. At the end of the day Herbert does what all these bigots do,downplay our relationships and treat them as nothing.

  • 10. lalaw  |  January 8, 2014 at 11:27 am

    I agree. This only guarantees the issue reaches SCOTUS next term. Good job Utah at green-lighting this case for the entire nation! Bloody good job!

  • 11. Richard Weatherwax  |  January 8, 2014 at 11:43 am

    Respectful or not, he did refer to the couples as "citizens". That makes a difference.

  • 12. Michelle Evans  |  January 8, 2014 at 12:14 pm

    If this one action does not prove the animus directed at LGBT people in this state, and every other state that keeps people from their marriage equality, then I don't know what does. To get a stay, someone is supposed to show specific harm. What harm has ever been shown to anyone except the couples who are married or are trying to be married? Why is it that there is a different set of legal rules when it comes to LGBT people. The burden of proof of harm goes to the state in this case, and they have zero harm, while others sit in limbo. My wife and I endured 5-and-a-half years of this in California after Prop 8, so I know what personal harm this does to a couple to insert this uncertainty into their lives. This stay was a bad decision and never should have happened, but the non-recognition should show SCOTUS immediately what harm is happening to LGBT couples everywhere.

  • 13. Paul  |  January 8, 2014 at 12:19 pm

    Actually, i found this decision to be petty, mean spirited, and completely uneccessary. He could have let things stay the same, no new marriages, but recognize the ones already performed. This, to me, was a deliberate swipe at those who dared to marry. The Governor and the AG chose to take a very punitive stance, pandering to the far right wing. I can't begin to imagine the anquish he has cheerfully caused with this directive. How people like this can sleep at night is beyond me.

  • 14. Dr. Z  |  January 8, 2014 at 12:35 pm

    Yes, there is a difference between first and second class citizens, you're right about that.

  • 15. Colleen  |  January 8, 2014 at 12:43 pm

    So if married couples were to hypothetically file a lawsuit (class action?) where would that suit be filed?
    Federal District Court?
    Judge Shelby?

  • 16. Colleen  |  January 8, 2014 at 12:44 pm

    Clarification of above: specifically, a suit to have the existing unions recognized by the state while the stay is in place.

  • 17. Eric  |  January 8, 2014 at 12:57 pm

    I find it odd that the AG claims no prior precedent, when Utah has a history of invalidating marriages with an HIV+ spouse. How did that work out for the state?

  • 18. Bruno71  |  January 8, 2014 at 1:02 pm

    I don't see how this guarantees anything. SCOTUS can always choose to deny cert on any issue.

  • 19. Bruno71  |  January 8, 2014 at 1:04 pm

    SCOTUS itself implemented the stay just the other day. I hate to say it, but I don't think they care about the couples if it interferes with their precious judicial processes.

  • 20. peterplumber  |  January 8, 2014 at 1:05 pm

    The Utah situation has been going on for many weeks now, but today is the first time I read anything about it on CNN.com
    The headline read "NEW Utah: 1,000 gay marriages invalid"
    Is "on hold" the same thing as "invalid"??

  • 21. Sean from NJ  |  January 8, 2014 at 1:11 pm

    CNN has had several articles about this issue over the past 2.5 weeks. The recent ones were not frontpage though but the initial ruling, the 10th circuit not issuing a stay and the Supreme Court doing so all were.

  • 22. Dr. Z  |  January 8, 2014 at 1:16 pm

    I was referring to an expected motion by the plaintiffs compelling Utah to permanently recognize these marriages regardless of the eventual outcome of the litigation. That would need to go to SCOTUS.

  • 23. SoCal_Dave  |  January 8, 2014 at 1:33 pm

    what?? seriously?

  • 24. SoCal_Dave  |  January 8, 2014 at 1:41 pm

    From the Governor's memo: "We also recognize that these changes affect real people’s lives."

    From the AG's statement: "We acknowledge that this is a very difficult situation for many."

    Clearly harm has been done and it's NOT to the state of Utah and these two lunkheads know it.

  • 25. lalaw  |  January 8, 2014 at 1:49 pm

    Regardless of how the 10th COA rules, expect a writ to SCOTUS. Of course, SCOTUS can always choose to accept or deny – but 1.) the chances just got a lot better (to grant cert) since this is now not only an issue for marriages that were denied in the first instance, but also reminds SCOTUS of the implications for existing marriages – whether from another state or from a time in which marriages were legal – are being affected that state laws that prohibit SSM and 2.) Utah has essentially pitched its current appeal as an all-or-nothing on the issue of these prohibitions vis-a-vis equal protection/due process guarantees.

    Granted, the worse is that Utah prevails and SCOTUS denies cert – as that will send a message that SCOTUS doesn't believe there are merits to the EP/DP concerns. However, anything else will be a win. If Utah prevails and SCOTUS grants, SCOTUS won't be able to hang this on some other tangential issue – we get a ruling on the merits. If we win and SCOTUS denies cert, this decision still sends a strong message to the states with bans that they may be in the same boat.

    I guess my thinking is that regardless of what happens, SCOTUS has to confront the issue sooner with this case and we may have an indication as to the thinking on the merits of the ultimate issue one way or the other by June 2015.

    Finally, this kind of treatment by Utah of SSM couples helps add up the "body counts" (bad pun, I realize) for SCOTUS to recognize that our struggle here is no less real than other historical civil rights cases. I am sure that by the time this rolls around, the couples in Utah will be able to point to – even if anecdotally – lots of instances where the ban/lack of recognition has kept couples from enjoying their legal rights. I would expect these to become part of the PR campaign as well as individual/class litigation against the state over the hold, as should be explored.

  • 26. sfbob  |  January 8, 2014 at 1:50 pm

    That's all I could think of: They did WHAT????

  • 27. sfbob  |  January 8, 2014 at 1:51 pm

    Implicitly he blames the married couples for creating all of the complexities. When in fact it is the state's refusal to recognize what are almost certainly legal marriages that creates problems for citizens (and, may I add, taxpayers).

  • 28. SoCal_Dave  |  January 8, 2014 at 1:56 pm

    http://www.nytimes.com/1993/07/25/us/aids-patient

    holy smokes

  • 29. Guest  |  January 8, 2014 at 2:09 pm

    Silly Christian bigots, our rights are not yours to grant or take away. Your words are worthless!

  • 30. fiona64  |  January 8, 2014 at 2:18 pm

    Yep … because it appears that the Pretty Hate State's government is unaware that ex post facto law is unconstitutional. Those marriages are legal. They cannot be made illegal retroactively without violating the constitution … so litigation is virtually guaranteed.

  • 31. Fr. Bill  |  January 8, 2014 at 2:34 pm

    Please note that there are many people of faith, including many Christians,who support same sex civil marriage. The same sex marriage bill here in Hawaii received strong public support from the Episcopalians, Unitarians, Jewish congregations, UCC, Methodists, Buddhists and many others. To get technical, LDS members are not considered christian by orthodox theological standards (e.g. the Nicean Creed, the Athanasian Creed,etc)

  • 32. Dr. Z  |  January 8, 2014 at 2:35 pm

    They had the law in place but does anyone know if there were actual instances where they enforced it to invalidate anyone's marriage?

    The harm was done regardless, since the mere threat of invalidation causes harm.

  • 33. lalaw  |  January 8, 2014 at 2:49 pm

    This is old but interesting…
    http://www.latimes.com/la-oe-yoshino30-2008jun30,…

  • 34. GregG  |  January 8, 2014 at 2:50 pm

    Given that the state has decided to appeal Judge Shelby's ruling, it seems to me that today's announcement was about the only thing the state could do. Neither the Governor nor the Attorney General have the authority to override the Utah Constitution on their own. Until the case reaches final resolution at a higher court, the Utah Constitution is in tact. If/When Marriage Equality is ultimately upheld, the marriages will be effective as of the date performed so tax returns can be amended and the longevity of the marriages for things such as Social Security benefits will count from the original date. I expect that, in the end, these couples will be better off than if Judge Shelby had issued a stay concurrent with his decision.

    I am also going to put on my "glass is half full" hat and say that one way to read his comment about "real people's lives" is that perhaps he is taking the first very baby steps toward "evolving" on the issue. He has now been faced to see the real world impact of the ban and the harm it causes some of the citizens in his state.

    Or, the other position is that his actions to date are sure a strange way of respecting the citizens of his state.

  • 35. Keith  |  January 8, 2014 at 2:57 pm

    The differences between Mormonism and traditional Christianity are explained at http://en.wikipedia.org/wiki/Mormonism_and_Christ

  • 36. LK2013  |  January 8, 2014 at 3:04 pm

    This is a hateful decision. These are not people of good conscience or heart. They don't give a damn about real people's lives.

  • 37. Eric  |  January 8, 2014 at 3:10 pm

    None of the denominations you list are Christian by orthodox theological standards, they are all heterodox.

  • 38. Richard Weatherwax  |  January 8, 2014 at 3:30 pm

    But would it be an ex post facto law? In California, the State Supreme Court ruled that California's ban against same-sex marriage was unconstitutional. That decision was never reversed, so same sex marriages were legal until they were banned by prop 8.

    In Utah we face a different situation. It is possible that the 10th circuit could reverse Shelby's ruling, in which case the marriages performed under that decision could be declared illegal.

  • 39. chrismac2  |  January 8, 2014 at 3:35 pm

    Also, and this theme was brought up in the plaintiff's brief opposing a stay, the appearance of "respectfullness" seems entirely disingenuous to me. Lamenting the fact that you are causing citizens in your state harm (with the uncertainty of the validity of their marriage), while at the same time being fully aware that if they (the state) were to prevail in it's case, that outcome will be just as harmful, if not more harmful, to those same citizens, is laughable.

  • 40. Michelle Evans  |  January 8, 2014 at 3:37 pm

    Sorry to be way off topic here, but I was just curious if you are any relation to the famous dog trainer Rudd Weatherwax?

  • 41. sfbob  |  January 8, 2014 at 3:44 pm

    According to the article SoCal_Dave linked to, two couples sued to get the law struck down and former Governor Leavitt promised not to enforce it. Even the legislator who sponsored the law said "What were we thinking?" Still, there's no indication what happened, if the law was superseded or what happened with the lawsuit. Apparently UT was the only state ever to have such a law, though they and Louisiana at one time had laws requiring all prospective spouses to be tested. In both cases the laws were superseded or were struck down in court.

    Does sort of remind me that back in the old days (like when I was in my 20's) couples needed to show they'd been tested for STDs before they could get married. At least that was the case in New York way back then. I haven't heard of such a law in CA; no idea how common it might have been or whether such laws have gone away.

  • 42. Paul S  |  January 8, 2014 at 3:56 pm

    I hope you don't take offense to this, but rather than defending "Chritianity" here on these pages, perhaps you should be challenging those "Christians" who use their religion as an excuse to discriminate on their pages.

  • 43. grod  |  January 8, 2014 at 3:57 pm

    Lalaw: I agree. This has been made clearer in a mid-December ruling by Ohio case by Judge T Black as the right to remain married and to have a valid marriage recognized. Now under appeal. While Black was dealing with out-of-state marriage and Shelby was as well;, it appears that by Utah’s actions the matter is now widened to recognition of valid marriages authorized by the same state [Utah]. Black asserts the right to remain married is an acknowledged right for straights, and it is an attribute of the right to marry – an aspect of the fundamental rights of individuals to life, liberty and happiness which are guaranteed all citizen as unalienable – neither government nor the people's majority can prevail against them. 15 of the current 25 or so cases in play have out of state recognition as an elements. http://www.gbfirm.com/litigation/documents/61_65-

  • 44. Eric  |  January 8, 2014 at 4:34 pm

    Maybe the courts will start thinking before issuing these stays on fundamental rights.

  • 45. Larry  |  January 8, 2014 at 4:54 pm

    The feds also need to decide what they're going to do about these marriages since there's a host of federal issues. If a binational couple got married, could they apply for a green card? Could couples that got married in the last week of December claim married filing status on their 2013 federal tax returns?

  • 46. bythesea  |  January 8, 2014 at 4:58 pm

    Sheesh…such assholes.

  • 47. JustMe  |  January 8, 2014 at 5:09 pm

    They are not legal if either the 10th or SCOTUS reverses… then it will be as if Shelby's ruling was not issued to begin with.

  • 48. Jack  |  January 8, 2014 at 5:17 pm

    As an Episcopal priest, I've challenged Christians who discriminate on a regular basis. One of the great privileges of 30 years of ordained ministry was the opportunity (finally!) to officiate at two SSMs in NJ in the past few months. I look forward to doing so many more times in the coming years.

  • 49. SoCal_Dave  |  January 8, 2014 at 5:17 pm

    Someday these jokers will look back at their fight against marriage equality and also say "What were we thinking?"

  • 50. Fr. Bill  |  January 8, 2014 at 5:17 pm

    I do everyday – so does my husband.

  • 51. RAJ  |  January 8, 2014 at 5:32 pm

    Good to read and as for your original remark about Mormons not being considered Christian by orthodox theological standards, I think most Mormons would be comfortable acknowledging that they're not orthodox Christians — while still considering themselves to be Christian.

  • 52. Rich  |  January 8, 2014 at 5:43 pm

    Thank you Jack. You are one of so many unsung heros. The world is a better place because of you.

  • 53. Richard Weatherwax  |  January 8, 2014 at 5:45 pm

    Not off topic. After all, Lassie is the world's most famous female impersonator.

    Rudd Weatherwax is my late uncle.

  • 54. Dr. Z  |  January 8, 2014 at 5:51 pm

    Texas wanted to permanently quarantine HIV+ people.

  • 55. StraightDave  |  January 8, 2014 at 5:54 pm

    (IANAL but this sounds easy to me)
    UT may choose to not recognize the marriages they just conducted, essentially treating them just like marriages conducted in other states that they don't recognize. But non-recognition is distinctly different from voiding them. The couple from Iowa that moved to UT will still file joint federal income taxes because the IRS looks at their legal marriage license and actually sees it (as opposed to UT who just sees blank space).

    The recently married UT couples can easily present their official, state certified marriage license, validly executed under the laws in effect at the time, and the IRS will treat it the same as they do every other identical piece of paper. (as opposed to the see no goodness, hear no goodness, speak no goodness HATU'ns.)

    It would only be if UT actually tried to legally void the recent marriages, does a big problem arise. Doing so at this time with no legal basis would raise a shit-storm.

  • 56. Bruno71  |  January 8, 2014 at 6:02 pm

    I'd guess it's only if the federal government, for whatever reason, balked at recognizing the Utah marriages because of the uncertainty regarding legal validity that these couples would have issues with federal income taxes. I'd also guess that this current federal government will recognize the marriages unless a federal court specifically declares them null and void.

  • 57. StraightDave  |  January 8, 2014 at 6:06 pm

    "We wanted to avoid the untenable situation in which many of our citizens find themselves."

    Seriously, Guv? You could have easily avoided that untenable situation by obeying the court's order and not appealing this thing. Real considerate you were, eh?

  • 58. StraightDave  |  January 8, 2014 at 6:09 pm

    What would you expect him to call them, livestock?!?!?!
    He gets points for that???

  • 59. StraightDave  |  January 8, 2014 at 6:23 pm

    Suppose the 10th reinforces Shelby's equality ruling. Then what. The current stay is set to expire then. It will be a long time before any SCOTUS ruling (if any). Probably 12+ months.

    I can't see the 10th granting a stay, when they already denied it before their ruling.
    Does SCOTUS jump in once again, probably prior to the next appeal even being filed? They may not yet know whether they will grant cert 5-6 months in the future.

    – If they grant a stay, but later deny cert – that totally sucks! Very poor planning
    – if they grant a stay, grant cert, and finally show UT the door. Great result, but an unjustified wait. That sucks even worse because it's a longer wait.
    – if they deny the stay then that's a huge clue they're likely to deny cert. I hope they don't grant a stay just to keep everyone guessing. Beneath their dignity, unprofessional, total scumbags.

    They probably don't want to see a stay petition show up at all.

  • 60. Bruno71  |  January 8, 2014 at 6:27 pm

    If my instincts are correct, the main thing SCOTUS wanted to accomplish with the stay was a basic set of rules surrounding marriage cases and appeals. A stay would no longer be necessary if they plan on denying cert. However, they probably won't be able to project 5 or 6 months in advance, and keep a stay in place until cert is denied.

    I'm not convinced the 10th doesn't grant a stay pending appeal to SCOTUS, after SCOTUS has already stepped in to reverse them once.

  • 61. StraightDave  |  January 8, 2014 at 6:29 pm

    No they won't, but their children will.

  • 62. StraightDave  |  January 8, 2014 at 6:42 pm

    I think it's different the 2nd time around. I don't have much conceptual problem with SCOTUS thinking, "This is a bit of a new situation. It's just one judge. Maybe we should get another set of eyes looking at it before we jump too far." Not inherently bad, since "that one judge" could also do us wrong.

    But once the 10th has ruled, you've now got new judges, 3 of them, probably from different states, more experience, generally closer in tune with SCOTUS thinking (or at least aware, since they directly feel the dreaded REVERSED experience). That might be enough for SCOTUS to say, OK, this one looks real — or for the 10th to believe that they would. I don't see the 1st stay carrying much future weight, all by itself.

  • 63. zauberflute  |  January 8, 2014 at 6:54 pm

    Utah Attorney General "We realize this decision deeply impacts the lives of those we hate, so on behalf of the Government of Utah, we would like to issue an official FU to same-sex couples statewide."

    It is so frustrating to fight for civil rights when seemingly obvious injustices are still being gleefully supported and justified by bigots, in the name of God. I take comf0rt in knowing that we will eventually win this, and that regardless of the state my husband and I live in and visit, we will be afforded the same dignity and respect as everyone else, Until then, the Utah's of the world be damned by their own God.

  • 64. Walter  |  January 8, 2014 at 7:48 pm

    Utah refuses to recognize legally valid Utah marriages. The stay does not make the marriages invalid or illegal. It only stops more marriages from occurring.

  • 65. Seth From Maryland  |  January 8, 2014 at 7:48 pm

    everyone should check out his facebook page the comments are coming in fast , his been deleting several of them but they continue to build up, almost all of the comments are very angry by this decision

  • 66. grod  |  January 8, 2014 at 8:02 pm

    Dave: You might thinks that the Supremes would have thought through all these possibilities before granting their current temporary stay. However I doubt that their law clerks would have of the mess that they would be creating. "What tangled webs Herbert and Reyes weave when they practice to …….".

  • 67. sfbob  |  January 8, 2014 at 8:09 pm

    Oh well, that's so surprising. (not)

  • 68. Jay Smith  |  January 8, 2014 at 8:38 pm

    Eric,

    Episcopalians, Methodists? Yes, they are (for better for worse) Christian.

  • 69. Mike in Baltimore  |  January 8, 2014 at 8:42 pm

    "UT may choose to not recognize the marriages they just conducted, essentially treating them just like marriages conducted in other states that they don't recognize."

    Does anyone know if the state of Utah does not recognize the marriages performed in any other state for any reason, except SSM? There are no circumstances that I've heard, except SSM.

  • 70. RAJ  |  January 8, 2014 at 9:51 pm

    It looks like the Utah chapter of the ACLU has sent a letter to AG Reyes' office weighing in on the the validity of marriages performed in Utah during the recent window, complete with case law and citations. From the letter:
    http://www.acluutah.org/images/PDFs-docs/14018_-_

    "While we appreciate your commitment to thoughtful analysis and your recognition of the vital importance of these marriages, there is no uncertainty here. In short, these marriages are valid and have vested the married couples with rights that the state and federal governments must recognize. Utah and the federal government should thus accord same-sex spouses who married in Utah all of the same protections and obligations that married couples of the opposite sex receive. We further submit that any efforts to retroactively invalidate those licenses would fail because these marriages are protected by the due process guarantees of the Utah and United States Constitution."

    They cite Strauss v. Horton, Cook v. Cook, 209 Ariz. 487 and Stackhouse v.Stackhouse (the last two are cases where it was found that marriages performed prior to changes in state marriage laws could not be retroactively invalidated because the married persons had vested rights in their marriages).

    btw: ACLA Utah is now actively seeking plaintiffs to sue over this.

  • 71. peterplumber  |  January 8, 2014 at 10:15 pm

    Hey, remember a couple of years ago when, on this site, on thes topic, the site administrator had to chime in and put a stop to the religion chatter?
    I am not syaing anything, I am just sayin'…

  • 72. Tom  |  January 8, 2014 at 11:31 pm

    The State of Utah allowed those marriages to continue based on a lawful court order in full effect at the time. A stay is not retroactive. The marriages were lawful and legal at the time they were performed and Utah agreed (they could have refused to perform and recognize them, if they really believed Utah's Amendment 2 took precedence over a current legally valid court order). Now, the question is: Are the plaintiffs vested property rights are being unconstitutionally violated? They clearly are, even the Utah State Supreme Court (state constitutional and US protections) should be able to see this.

  • 73. Michelle Evans  |  January 8, 2014 at 11:39 pm

    Richard, that's fantastic! My family used to raise collies and your uncle was our breeder. If you ever want to drop me a line, I'm at mach25 (at) sbcglobal (dot) net.

  • 74. Brian  |  January 9, 2014 at 2:58 am

    "It is a truism that almost any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so."
    -Robert A. Heinlein

  • 75. JustMe  |  January 9, 2014 at 4:00 am

    No they are not … Especially the Episcopalians.

  • 76. JustMe  |  January 9, 2014 at 4:03 am

    The Utah constitution prevents the recognition of SSM. With the stay in place, the parties are returned to the status quo ante. I.e. SSM is illegal in UTAH at the moment.

  • 77. JustMe  |  January 9, 2014 at 4:17 am

    Well "Jack"… As an orthodox Anglican I find it heretical that you would call "tearing the fabric" of the Anglican Communion to which you so proudly claim to belong as one the the "great privileges" of ministry. Lambeth Resolution 1.10 of 1998 still says that the mind of the Communion is that:

    "There can be no description of human reality, in general or in particular, outside the reality of Christ. We must be on guard, therefore, against constructing any other ground for our identities than the redeemed humanity given to use in him. Those who understand themselves as homosexuals, no more and no less than those who do not, are liable to false understandings based on personal or family histories, emotional dispositions, social settings and solidarities formed by common experiences or ambitions. Our sexual affections can no more define who we are than our class race or nationality. At the deepest ontological level, therefore, there is no such thing as "a" homosexual or "a" hetrosexual; therefore there are human beings, male and female, called to redeemed humanity in Christ, endowed with a complex variety of emotional potentialities and threatened by a complex variety of forms of alienation."

  • 78. Walter  |  January 9, 2014 at 4:51 am

    The court with the stay did not decide that Amendment 3 is legal. The courts have so far decided that Amendment 3 is illegal. That is the status quo. Utah marriage discrimination laws are illegal.

  • 79. Zack12  |  January 9, 2014 at 5:03 am

    http://www.huffingtonpost.com/amy-dardashtian/uta
    Sheesh,I've seen some bad articles but this one is the worst.

  • 80. Eric Koszyk  |  January 9, 2014 at 5:09 am

    You must know that the majority of us don't even read your posts anymore, right?

  • 81. Dr. Z  |  January 9, 2014 at 5:49 am

    Hm, looks like someone struck a nerve.

  • 82. jutta  |  January 9, 2014 at 5:51 am

    According to an article in Deseret News the law was ruled unconstitutional in late 1993 http://www.deseretnews.com/article/466634/UTAH-AC

  • 83. Dr. Z  |  January 9, 2014 at 6:30 am

    The stay was not retroactive, so the marriages performed thus far are valid and will continue to be so since they were entered into according to the law that was in place at the time. Nor may a state retroactively invalidate marriages. The status quo is that Utah's Amendment 3 is unconstitutional – the stay did not overturn Shelby's ruling.

  • 84. grod  |  January 9, 2014 at 6:30 am

    Had difficulty with your link to letter, got it http://www.scribd.com/doc/197435295/Utah-Marriage… G.

  • 85. Walter  |  January 9, 2014 at 6:32 am

    “…the case also articulated a philosophy held by the court that does not look promising for gay rights advocates with regard to the issue of a state's right to ban gay marriage. The Defense of Marriage Act was struck down on the basis that it was a federal intrusion into state power.” Amy Dardashtian really misses the entire thrust of the decision which in fact says the following.
    “DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government…The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.” The states right is the beginning of the analysis, not the end. And the decision concludes “DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper…By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

  • 86. RAJ  |  January 9, 2014 at 6:37 am

    Thanks grod.

  • 87. Steve  |  January 9, 2014 at 6:38 am

    Just because it sounds respectful doesn't mean it's respectful. It's anything but and extremely condescending. The idea that they seek to avoid harming anyone is a lie and everyone knows it.

    However, that's typical for the Mormons who will always smile and then stab you in the back a second later.

  • 88. grod  |  January 9, 2014 at 6:40 am

    David please read ACLU's letter and then determine if you hold the same opinion. http://www.scribd.com/doc/197435295/Utah-Marriage…. G

  • 89. RAJ  |  January 9, 2014 at 6:45 am

    Mormon feminist Margaret Toscano has a term for this — "vicious niceness". She coined it to describe her treatment by LDS leaders after they had just excommunicated her. Having just stripped her of her membership, cast her out, so-to-speak, they were all smiles and wanted to shake her hand and hug her.

    In short, is simple passive-aggressiveness.

  • 90. Carol  |  January 9, 2014 at 7:21 am

    Thank you for making the point that "at the deepest ontological level" we are all human beings. We are entitled to be treated equally and are obliged to treat each other equally.

  • 91. Dr. Z  |  January 9, 2014 at 7:27 am

    Nice is different than good.

  • 92. Lymis  |  January 9, 2014 at 7:31 am

    On the other hand (and please, I'm vehemently in support of universal access to marriage equality), any ruling by the 10th is binding on a bunch of other states who didn't have a chance to make their own case why they get to treat THEIR citizens like crap.

    I can honestly see more justification for a stay of the 10th Circuit ruling by SCOTUS than I can for staying the District Court ruling.

    Sucks and wrong, but I honestly expect a stay unless they deny cert outright.

  • 93. Lymis  |  January 9, 2014 at 7:35 am

    I agree that it's petty and mean spirited, but I don't see how he could do otherwise, beyond dropping the appeal entirely.

    Their entire case is based on the idea that it harms the state and is an affront to the citizens for same-sex couples to be treated as married. He can hardly continue to make that case while being okay with treating hundreds of couples as equal, knowing that there wouldn't even be a blip of inconvenience, much less harm.

    What's he going to say then? "These first thousand couples didn't hurt the state or its citizens in the slightest, but it's the REST of them that will destroy civilization and democracy as we know it!"

  • 94. Dr. Z  |  January 9, 2014 at 7:37 am

    Assuming that SCOTUS issued the stay because they thought things were moving too fast and they wanted things to continue to percolate for a while at the appeals level, the stay may well end up doing just the opposite – increasing pressure on SCOTUS to get involved. In overruling the 10th and issuing a stay, SCOTUS has signalled to the federal court system that they intend to be the deciders. Now that Utah has interpreted the stay as an opening to discriminate against SS couples, the inevitible legal challenges are going to have to go directly to SCOTUS. No lower court can decide them, since SCOTUS disregarded its own rules for a stay without providing a reason or clear guidance what to do. In trying to sidestep the issue, they have instead stepped right into it.

  • 95. Lymis  |  January 9, 2014 at 7:39 am

    I doubt that a case to have the state recognize them would get any traction, because that's what the main case is about in the first place.

    I think a case in federal court asking for federal clarification of the federal status and recognition of their marriages, especially those that took place before Jan 1, and are therefore subject to federal tax status questions, as well as all other federal benefits in the interim, might well be not only valid, but expedited.

    The longer it drags out, the more likely that someone will have valid reason to ask for clarification about things like Social Security, health insurance, inheritance taxes, and other state-run federally funded issues.

  • 96. Lymis  |  January 9, 2014 at 7:43 am

    See also: Pharisees.

    There is precedent on how at least one important Christian considered people who considered the letter of the law more important than people. But, then again, who listens to Jesus any more?

  • 97. Lymis  |  January 9, 2014 at 7:45 am

    Careful with your language. It is not illegal to BE married in Utah. It is illegal to GET married in Utah. There are no civil or criminal penalties associated with being in a same-sex marriage that was legally contracted. The state simply refuses to honor them.

  • 98. Lymis  |  January 9, 2014 at 7:49 am

    But at the same time, the current state of the law in the US is that states have not been declared obligated to recognize marriages, even marriages that are unquestionably valid when and where they were contracted.

    The question of whether these marriages can retroactively be declared invalid is entirely distinct from the question of whether Utah can choose not to recognize them for state purposes.

    A lot of people are speaking as though acknowledging that the marriages were legally contracted at the time obligates Utah to treat them as marriages for state purposes during the stay. There's no evidence that they do. Oklahoma doesn't have to. Why is it self-evident that Utah does?

    Mind you, I think they should. I think it's unconstitutional not to, and I think it's inevitable that it will be declared so, and that it's long past time. But that's really independent of the current state of the laws.

  • 99. Lymis  |  January 9, 2014 at 7:54 am

    One of the frustrating things about the Supreme Court is that they get to specifically declare what part of each question they are addressing, and to ignore other parts of the question as though they don't exist.

    Just because the court said that the federal government cannot intrude into the state's right to define marriage, it doesn't mean that they can't subsequently hold that the state isn't free to define marriage however it chooses, without constraint. While they can each define marriage how they choose, they still have to do so within the constraints that the federal Constitution places on their powers. In this case, that they can't treat their citizens unequally like this.

  • 100. StraightDave  |  January 9, 2014 at 8:11 am

    While I can easily put myself in OK or KS heads like you did, isn't your logic applicable to just about any circuit court ruling? By definition, a case comes from one state, but the ruling covers many states.

    Now, perhaps it isn't so common to have one case cover so many people and piss off so many people at once. Maybe that's why this *feels* different.

    If SCOTUS issues a stay pending review, then they damn well better review it,

  • 101. Dr. Z  |  January 9, 2014 at 8:14 am

    Wouldn't it depend on whether the people affected by that invalidation constitute a suspect class, and whether such invalidations were being handled in a manner that sets them apart from other marriages? Does Utah recognize other marriages that could not validly be performed in Utah?

  • 102. sfbob  |  January 9, 2014 at 8:38 am

    Does UT currently refuse to recognize any out-of-state marriages other than same-sex marriages? It seems highly unlikely that they do not; the public policy exception is, I believe, very seldom invoked by ANY state with respect to marriages other than, of course, our marriages, under cover of Section 2 of DOMA. In which case the only precedent Utah can point to for this new policy is one that is the subject of the current controversy.

  • 103. Zack12  |  January 9, 2014 at 8:55 am

    As much as I hate Scalia,he was right in his DOMA dissent. The court was going to hear about gay marriage bans sooner versus later because of the way the ruling was handed down.

  • 104. MightyAcorn  |  January 9, 2014 at 9:17 am

    CA had blood test laws into the 90's; many states had them and not just for STDs. Rh factor tests were also sometimes required, IIRC. I would think a law like Utah's would have been a violation of the ADA, but I'll have to read more about why it was invalidated.

  • 105. sfbob  |  January 9, 2014 at 10:12 am

    Well he did say pretty much the same thing in his dissent on Lawrence. Thing is, he considered it a problem while those of us on the rational side of the spectrum considered it a bonus. I've no doubt that he attempted to convince some of his colleagues to change their mind because of the obvious implications, believing they would take it as some sort of "oh, we didn't consider that and maybe we should change our minds since after all who would want to give those icky gays the equal right to marriage?" In which case he misjudged the views of at least a couple of his colleagues who, I suspect, don't have any problem with marriage equality even if they are otherwise cool with creating a society wherein money buys entitlement.

  • 106. Anthony  |  January 9, 2014 at 10:31 am

    I think SCOTUS is counting on as many gay people to come out of the closet as possible in order to educate society on why a sweeping national ruling is needed. Without federal intervention, it will literally take decades to get these constitutional amendments repealed. We shouldn't be forced to having to beg for our rights state by state when the characteristic we are being discriminated against is beyond our control.

  • 107. Zack12  |  January 9, 2014 at 10:33 am

    Exactly,if left up to the will of the people,gays and lesbians in the South and the Midwest will be waiting a very long time for marriage equality.

  • 108. Anthony  |  January 9, 2014 at 10:50 am

    Yea, and then people say, oh, if things are changing, why shouldn't the people decide? The problem with that is the there are so many minorities already protected in case law via heightened and strict scrutiny. It is an injustice to force us to live without legal protections. That, and we patently meet each of the 4 criteria for a protected minority.

  • 109. Bruno71  |  January 9, 2014 at 11:27 am

    This is a highly procedural and technical SCOTUS we have now. It seems like most everything they look at comes under extreme scrutiny as to whether or not it passes the procedural smell test. That's what I think happened here. So is the message SCOTUS is sending that a District Court shouldn't be able to make a huge sweeping change to state law without allowing the appeals process to proceed? Yes, but also let's not forget that the 10th Circuit had a hand in this already. Given that no stay was asked of Shelby by Utah, I think their message is aimed even more at the lack of stay granted by the circuit court: get in line, and let the process play out. I don't think it matters how many justices look at the case: they want the procedure to be a certain way, and final, before any changes to state law are effected.

  • 110. Bruno71  |  January 9, 2014 at 11:33 am

    To me, Christ believer = Christian. Any of this inter-denominational fracas is irrelevant. But maybe growing up Jewish doesn't give me the insight others have.

  • 111. Bruno71  |  January 9, 2014 at 11:41 am

    I don't think SCOTUS wants to decide anything it doesn't have to. They felt they had to step in on the stay issue because they felt a procedural wrong had occurred, both at the District and Appeals courts. That doesn't mean they necessarily want anything else to come directly to them, and I don't think it signals anything about granting cert in any case or related case that may come before them in the future.

  • 112. Anthony  |  January 9, 2014 at 11:42 am

    They are just waiting for society to reach critical mass and then they will take the next case. This will be a very eventful year, no doubt about it.

  • 113. StraightDave  |  January 9, 2014 at 11:46 am

    "I think SCOTUS is counting on as many gay people to come out of the closet as possible … "

    If that's what SCOTUS is thinking, then I think letting the Utah ruling stand would have done much more to bring people out of the closet. It would have also brought out infinitely more potential on-the-fence supporters who are culturally timid about how they are perceived, regardless of their inner feelings.

    Any headline that looks remotely like "Supreme Court Allows Utah Gay Marriages to Continue" gives people a lot of cover. Then it's really hard to put back in the bottle. I think SCOTUS was afraid of letting the dogs loose quite yet.

  • 114. Bruno71  |  January 9, 2014 at 11:51 am

    They want the process to play out in a certain way, which they've now established. No rushing into things. I'm not sure they care so much if gay couples marry or don't marry in Utah, they just care that the proper procedures are followed before a change is made. And that's what frustrates me…procedure supersedes the real lives of folks "on the ground."

  • 115. Dr. Z  |  January 9, 2014 at 12:43 pm

    But, if a procedural error was make SCOTUS should have specified what that was. The standards were clear, and Utah did not meet them, yet a stay was granted – indicating the reason for the stay was political rather than legal.

  • 116. grod  |  January 9, 2014 at 12:51 pm

    HRC urges U.S. AG to ensure validity of Utah 1300 same-sex marriages http://www.sltrib.com/sltrib/news/57373414-78/mar

  • 117. grod  |  January 9, 2014 at 2:55 pm

    HRC urges States with Equality to agree to recognize the Utah 1300 valid same sex marriages.

  • 118. Equality On TrialUtah att&hellip  |  January 9, 2014 at 2:57 pm

    […] of existing legal marriages in the state, something that has not been decided by this memo or the previous one. EqualityOnTrial will have more on these developments […]

  • 119. sfbob  |  January 9, 2014 at 3:26 pm

    It's not so much illegal for a same-sex couple to get married in Utah as it is currently IMPOSSIBLE. A couple could, for example, have a wedding ceremony performed by a member of the clergy. There'd be no legal sanction against any party, but the ceremony would have no legal effect and there'd be no marriage certificate for the clergy member to sign afterwards. I assume that a city or county official who performed a marriage ceremony for a gay or lesbian couple and then attempted to certify it might suffer some administrative consequences.

  • 120. Bruno71  |  January 9, 2014 at 3:36 pm

    Well, you try telling SCOTUS what's proper and what's not proper. Whatever they say is proper and they don't have to ever explain themselves if they don't want to. Such is life with SCOTUS.

  • 121. Dr. Z  |  January 9, 2014 at 5:51 pm

    Maybe so, but even SCOTUS has to deal with the consequences of chaos in the judiciary when they set conflicting or arbitrary standards.

  • 122. JustMe  |  January 9, 2014 at 7:44 pm

    You must know that I dont care, right?

  • 123. JustMe  |  January 9, 2014 at 7:58 pm

    You might want to go re-read the Constitution and whose power it is that is limited by the Constitution (hint it aint the states):
    http://www.krisannehall.com/index.php/blog/70-nul
    http://www.krisannehall.com/index.php/blog/69-nul
    http://www.krisannehall.com/index.php/blog/137-ar

  • 124. Justme  |  January 9, 2014 at 7:59 pm

    To deny the States this right is tyrannical and is an unconstitutional doctrine. In fact our founders believed that if the States did not refuse to submit to unconstitutional use of federal power, the result would be the elimination of state powers, elimination of the rights of the people, and the complete dissolution of the Union and our Constitution.

    “the doctrine which denies to the States the right of protecting their reserved powers, and which would vest in the General Government (it matters not through which department) the right of determining, exclusively and finally, the powers delegated to it, is incompatible with the sovereignty of the States, and of the Constitution itself, considered as the basis of the Federal Union.” Fort Hill Address, John C. Calhoun July 26, 1831

  • 125. Dr. Z  |  January 9, 2014 at 8:21 pm

    Oh goodie, a John C. Calhoun quote. Here's another:

    "Never before has the black race of Central Africa, from the Dawn of History to the present day, attained a position so civilized and improved, not only physically, but also morally and intellectually [as under slavery.] It came among us in a low, degraded and savage condition, and in the course of a few genetions it has grown up under the fostering care of our [slaveholding] institutions, reviled as they have been, to its present relatively civilized condition. This, with the rapid increase of numbers, is conclusive proof of the general happiness of the race, in spite of all the exaggerated tales to the contrary."

    John C. Calhoun, Speech on the Reception of Abolition Petitions,

  • 126. Dr. Z  |  January 9, 2014 at 8:25 pm

    If you don't care, then why do you keep trolling here?

    Ah yes, I thought so…

  • 127. sfbob  |  January 9, 2014 at 9:49 pm

    Based on the philosophy you've articulated, Loving vs Virginia was wrongly decided because Virginia was entitled to determine who could and could not marry whom without any exception. Do you really want to go there?

    The doctrine enunciated by Calhoun was one of causes of the Civil War. I think it's safe to say that Calhoun's view did not carry the day in that instance and doesn't currently. Your invocation of the discredited notion of nullification is likewise a non-starter. No state law or state constitutional clause can trump the Constitution no matter how loudly it asserts state sovereignty. States are free to provide rights more expansive than those flowing from the Constitution but they aren't free to restrict them below what flows from the Constitution.

  • 128. JustMe  |  January 10, 2014 at 4:40 am

    We'll see…
    http://www.slate.com/articles/news_and_politics/p

  • 129. JustMe  |  January 10, 2014 at 4:42 am

    "nearly 100 state legislators from 32 states filed into the library"

    We only need 2 more states… then we'll have a constitutional convention.

    "But this is a nonpartisan idea. Prof. Lawrence Lessig, who definitely doesn’t agree with Mark Levin, has said that we’re doing something that makes sense.”

    That’s true. There are progressive-minded legal thinkers who like the idea of states blowing past the unmanageable Congress. "

  • 130. JimT  |  January 10, 2014 at 6:46 am

    This is a possible consequence of what may very well happen in the near future when people become complacent and not vote in state/midterm elections which is why the GOP took control of several states during the 2010 midterm turning several states completely red so they could gerrymander districts to their advantage and then enact new “voter suppression” laws.

  • 131. Rick O.  |  January 10, 2014 at 7:04 am

    Gov. Herbert to AG's office that forgot to ask for stay in first place: "Well Ollie, this is a fine mess you have gotten us into".
    Whichever way the 1000 SSMs are handled, I can't imagine any way that will NOT be a PR disaster for the state.Can you imagine a TV ad featuring a judge (preferably a Scalia look-a-like) and Herbert pronouncing a couple divorced, bailiffs forceably separating them with crying children in the picture?

  • 132. Equality On TrialFederal &hellip  |  January 15, 2014 at 12:18 pm

    […] district court’s decision declaring the state’s ban unconstitutional. Utah officials had said earlier this week that state recognition of these marriages would be “on hold” pending […]

  • 133. Equality On TrialMichigan&hellip  |  March 24, 2014 at 9:01 am

    […] married until the Supreme Court issued a stay. State officials put same-sex marriage recognition “on hold” in the state. The ACLU of Utah sued to have the state recognize those marriages, and that case is […]

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