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Utah same-sex couples married before Supreme Court stay seek order requiring recognition of their marriages

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Utah. Attribution: Wikipedia
Utah. Attribution: Wikipedia
Same-sex couples who were married in Utah before the Supreme Court issued its stay in the Kitchen case are asking a federal district court to hold an expedited hearing on their request to have Utah officials recognize their marriages. The ACLU is leading the challenge in the district court; the case is Evans v. Utah. Utah officials put recognition of existing same-sex marriages “on hold” when the Supreme Court issued its stay of the district court’s injunction. The ACLU case was filed in order to ensure that Utah can’t deny recognition of the existing marriages, whether or not the decision in the Kitchen case is ultimately upheld.

The couples’ filings state that the court “must immediately recognize the marriages by same-sex couples entered into pursuant to Utah marriage licenses issued between December 20, 2013, and January 6, 2014, including Plaintiffs’ marriages, as valid marriages and must afford all such couples and their families, including Plaintiffs, with all of the protections and responsibilities given to all married couples under Utah law.”

A hearing on the motion for a preliminary injunction should be heard “on the earliest date possible” because Utah’s “refusal to continue to recognize Plaintiffs’ marriages has left them in a state of uncertainty and fear.”

If the court agrees to hold a fast-tracked hearing and grants the injunction, Utah officials would have to recognize legally-performed same-sex marriages in the state, at least until final resolution of the case.

The couples filed a separate request to the court, asking the district court to certify two questions to Utah’s state supreme court:

1. Under Utah law, do same-sex couples who were legally married between December 20, 2013, and January 6, 2014 have vested rights in their marriage which are protected under Article I, Section 7 of the Utah Constitution?

2. Once the State of Utah recognized the marriages of same-sex couples entered into between December 20, 2013, and January 6, 2014, could it apply Utah Code §30-1-4.1 and Article I, Section 29 of the Utah Constitution to withdraw that recognition?

Certifications to the state supreme court are common when questions of state law are at issue. In fact, the filing states that “the Utah Supreme Court may answer a question of Utah law certified to it by the Utah Federal District Court, so long as “the question certified is a controlling issue of law in a proceeding pending before the certifying court,” and “there appears to be no controlling Utah law.””

They suggest that in this particular case, it makes even more sense to first certify these questions to the state supreme court, “because this [federal district] Court will not need to reach Plaintiffs’ federal constitutional claims if the Utah Supreme Court determines that Defendants’ position is incorrect as a matter of state law.” They note that state law resolutions are preferred over federal ones.

The district court is likely to act on the request for an expedited hearing quickly.

Thanks to Kathleen Perrin for these filings


  • 1. grod  |  February 6, 2014 at 6:42 pm

    IMO getting these two questions answered by the Utah Supreme Court fits well with Utah view that each state has authority over marital and family law. Windsor reminds all that this authority is subject to equal protection and due process guarantees accorded marriage as an aspect of a fundamental rights – liberty, happiness. If accepted for consideration one would hope that the eight states that said they would recognize Utah's valid marriages submit an amicus brief. .

  • 2. grod  |  February 7, 2014 at 1:13 pm

    State wants 14 days to respond to plaintiffs complex brief. Do the AGs office realize how cold-heated this stall makes them appear.

  • 3. StraightDave  |  February 7, 2014 at 1:24 pm

    "… raises a number of complex and novel legal issues "

    In other words, we never thought we would have to answer for our actions and we have no idea how to do so. We haven't been keeping up on the latest doings out in the rest of the heathen country, so we're just hoping for a miracle to intervene soon.

  • 4. grod  |  February 7, 2014 at 3:23 pm

    Neat Utah accepts 1364 married/non-recognized as a class. In their brief to the Appeals Court pg 16 Utah says "The State respects and values those [gay] citizens and their children as both equal before the law and fully entitled to order their private lives in the manner they have chosen." These 1364 have chosen civil marriage. Justice Kennedy has said: The class to which [DOMA] {the AG} directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. [DOMA] {AG} 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.

  • 5. Dr. Z  |  February 6, 2014 at 7:04 pm

    GO! GO! GO!

  • 6. Dr. Z  |  February 6, 2014 at 7:48 pm

    A personal note I'd like to share with all my friends at Equality on Trial.

    As some may know, Scott Lively is on trial for Crimes Against Humanity in Massachusetts under the Alien Torts Act. I would like to share with you my personal history with Scott Lively. Long before he became of international notoriety, he lived in Oregon, and he made miserable the lives of those of us who made it through Ballot Measure 9. Since Oregon is about to go through a ballot initiative to repeal our DOMA law, this bit of history is germane.

    In 1992 Lon Mabon and Scott Lively qualified Ballot Measure 9, which would have made it the official policy of the state of Oregon to regard homosexuality as "wrong, immoral, unnatural and perverse", to forbid the state frim enacting gay rights legislation, to invalidate all local nondiscrimination ordinances, and to forbid the public schools from teaching that homosexuality was an acceptable lifestyle. I was one of many thousands of people who fought against this invidious measure. It was a terrible thing. Two gay people died in Salem, victims of a firebombing. The Portland MCC was broken into and vandalized, and its membership stolen. There were several antigay acts of vandalism. I recieved a death threat due to my No On 9 bumper sticker. Like many others, I knocked on doors; I gave money; I sang in the Portland Gay Men's Chorus as we toured the state to raise morale, and money.

    We won – 57% to 43% – but when Mabon and Lively appeared on Election Night 1992 and said they'd be back in 1994, I couldn't take any more. I was suicidal, and I checked myself into the hospital.

    It was a long road back. We beat the Oregon Citizen's Alliance in 1992, 1994, and 2000. Because of this, Oregon was the one state where it was thought we could win against overwhelming odds in 2004 – and although we ran the most competitive race that year, we could not prevail against the tide.

    In the end, though, we won – and decisively. Mabon and Lively weren't satisified with Oregon alone – they exported Ballot Measure 9 in a slightly watered-down form to Colorado, where it passed as CO2. In 1996, SCOTUS struck down CO2 in Romer v Evans.

    In the following clip, Scott Lively is briefly visible at 0:42 ("Follow me!") and Dr. Z is one of the singers, briefly visible at 3:07.

  • 7. Straight Ally #3008  |  February 6, 2014 at 9:50 pm

    I can scarcely believe that this happened in my beloved country so recently, and in a progressive place like Oregon at that.

    I'm sure you're aware of this, but I'll post it to be sure; they're more than 1/4 of the way to their goal:

    And this comic sums up what a monster Scott Lively is, without even getting into Ballot Measure 9:

    I hope future generations can forgive us, as a nation, for what was perpetrated on our watch.

  • 8. Zack12  |  February 7, 2014 at 3:46 am

    This nation has had a lot of things to apologize for over the centuries, it's treatment of LGBT citizens will just be another thing to add to the pile.

  • 9. Chuck from PA  |  February 7, 2014 at 7:33 am

    Well, Dr. Z we're all glad the hospital got you back together again. You are a staunch fighter for our rights and we need everyone of us in this fight. No checking out early. Your posts always help us see things more clearly.

  • 10. Jay  |  February 7, 2014 at 7:45 am

    Thank you, Dr. Z, for all you have done in fighting the bigotry of people like Scott Lively. I know the toll such a struggle takes. But we shall overcome someday. And someday soon.

  • 11. KarlS  |  February 7, 2014 at 5:22 pm

    I dunno how much consolation it is to you being on the right side of history but hope it's enough! Way to go!

  • 12. Marriage Equality Round-U&hellip  |  February 7, 2014 at 6:45 am

    […] USA, Utah: Same sex couples married in december and January in Utah are asking the district court to formally recognize their marriages. full story […]

  • 13. grod  |  February 8, 2014 at 9:23 pm

    Hi, aware of Utah's religious cohabitation decision (Dec 2013). How does this square with Utah's best model assertions? Mutually inclusive or exclusive? G

  • 14. grod  |  February 9, 2014 at 8:52 am

    Judge C Waddoups (Dec 2013) exploration of the fundamental right to liberty in the context of Utah's marital relations laws coming a week before Shelby helps to explain the chaos in the AGs office. Marriage laws declared unconstitutional by two federal courts. Polygamy ruling has yet to be appealed, marriage equality appealed immediately. What gives?

  • 15. grod  |  February 9, 2014 at 8:59 am

    Learn the difference between religious cohabitation and adulterous cohabitation in Utah! And a marital law that was unevenly administered.

  • 16. grod  |  February 8, 2014 at 9:34 pm

    Roberta Kaplan on behalf of Utah's Dec married couples Douglas Wortham and Nicholas Nero; Lynn Beltran and Claudia O’Grady; and Stanford Rovig and Charles Fluke will file an amicus brief [among others] with the Appeal Court.

  • 17. SoCal_Dave  |  February 9, 2014 at 1:23 pm

    A little bit OT, but concerning ME in UT. It looks like the mormon church has decided to once again get involved by filing an amicus brief as part of a consortium of religious groups.

  • 18. Straight Ally #3008  |  March 6, 2014 at 9:31 pm

    Wow. Look at all the usual suspects on that list!

    • Consortium that includes the Church of Jesus Christ of Latter-day Saints, National Association of Evangelicals, U.S. Conference of Catholic Bishops, the Ethics and Libery Commission of the Southern Baptist Convention, and the Lutheran Church-Missouri Synod

    This is one of maybe two issues that unite these groups. USCCB is consistently much farther to the right than lay Catholics, for what it's worth, I don't know about the other groups.

    • Family Research Council

    Ah, Tony Perkins. I thought I recognized his foul stench.

    • Coalition that includes The Center for Urban Renewal and Education, The Coalition of African-American Pastors USA and the Frederick Douglass Foundation

    A.k.a. people who should be ashamed of themselves for being against minority rights.

    • Concerned Women of America

    Slightly less comical and even more outraged than One Million Moms.

    • Sherif Girgis, Robert P. George, Ryan Anderson, authors of "What is Marriage? Man & Woman: A Defense."

    Robert George and his NOMbie acolytes.

    • Dani Hartvigsen for Doug Mainwaring, Alana Newman, Robert Oscar Lopez and Janna Anderson

    …and scraping the bottom of the barrel, self-hating gay kapos and their enablers.

    What a freak show.

  • 19. Ragavendran  |  March 6, 2014 at 8:47 pm

    The EoT team has had a lot on their plate lately, so here's the latest on Evans v. Utah since their last report that the Plaintiffs requested an expedited hearing:
    (1) February 6. Court GRANTS Plaintiffs' motion to expedite briefing and hearing schedule.
    (2) March 4. Briefing is complete.
    (3) March 12 at 10am. MOTION HEARING.

    I presume no matter which way the Court rules, it will be appealed with an expedition request to the 10th Circuit, which is already throbbing with two related appeals.

    Note that Judge Shelby isn't a mormon (to the best of my knowledge, and supported by this article) but Senior Judge Kimball is as almost mormonic(?) as one could get, according to Wikipedia. He has has served in many leadership positions within LDS, including bishop, high councilor, stake president, and Regional representative of the Twelve.

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