• Facebook
  • Twitter
  • Subscribe
  • RSS

Utah Will Not Recognize Same-Sex Marriages Performed Before Stay Issued

Utah Same Sex Marriages

Late last month, a Federal Judge in Utah declared that state’s law banning same-sex marriage to be unconstitutional, a ruling which is currently under appeal to the 10th Circuit Court of Appeals. In the immediate aftermath of that appeal, the state requested a stay of that ruling that was denied both by District Judge Shelby and by a panel of the 10th Circuit. Ultimately, of course, the stay was granted by an apparently unanimous Supreme Court earlier this week. In the intervening period of about two weeks, though, nearly 1,000 same-sex couples in Utah were married based upon the District Court Judge’s ruling. Those marriages ceased as a result of the Supreme Court stay, of course, but left open is the question is the status of those marriages conducted between the date of the initial ruling and the time that the Supreme Court’s stay went into effect.

For it’s part, the State of Utah is taking the position that these marriages are not valid:

DENVER — The fortunes of 1,300 newlywed same-sex couples in Utah were thrown into turmoil on Wednesday after the governor’s office announced that it would not recognize their marriages while it presses its legal efforts to limit marriages to one man and one woman.

It was the latest twist in the 19-day tale of same-sex marriage in one of the country’s most socially conservative states. Last month, a surprise ruling by a federal judge overturned Utah’s voter-approved ban on marriage among gay couples, prompting hundreds to rush jubilantly to county clerk’s offices to obtain Utah marriage licenses.

After unsuccessfully petitioning two lower courts to halt those weddings, Utah succeeded Monday in persuading the United States Supreme Court to issue a stay while the state appeals. The ruling blocked any additional same-sex unions from taking place and effectively reinstated Utah’s disputed ban.

For gay couples, it was a moment of emotional whiplash after the elation and celebration of the past two weeks. They said they still hoped a higher court would agree that same-sex couples in Utah have a fundamental right to marry, but they worried about the effects of the state’s actions on their families and finances.

Nicole Campolucci, a mother of three who married her partner on Dec. 23, said the couple had planned to meet with a family lawyer to discuss how Ms. Campolucci could become a legal guardian to her partner’s children. She said that now seemed unlikely.

“We are starting to feel persecuted,” she said. “The state is going out of their way to make things as difficult for people as they possibly can.”

Clifford Rosky, the chairman of Equality Utah, a leading gay rights group, said that the marriage licenses obtained by about 1,300 same-sex couples were still valid despite the stay, and that they deserved the same rights as any other married couples in Utah. Advocates predicted gay couples would sue to challenge Utah’s move and to seek recognition for their marriages.

“The State of Utah is now trying to take back all of these marriages by refusing to recognize them,” Mr. Rosky said in a statement. “This is an unprecedented step, which inflicts severe harms on more than 1,000 families.”

The United States, meanwhile, is apparently taking the position that these marriages are valid and will receive the same recognition under Federal Law as those performed in the seventeen states and the District of Columbia where same-sex marriage is legal:

WASHINGTON — The Obama administration on Friday said that it would recognize as lawful the marriages of 1,300 same-sex couples in Utah, even though the state government is refusing to do so.

Wading into the fast-moving legal battle over same-sex marriage rights in one of America’s most socially conservative states, the administration posted a video on the Justice Department’s website making the announcement. Attorney General Eric H. Holder Jr. said that the federal government would grant federal marriage benefits to the same-sex couples who rushed to obtain marriage licenses after a federal judge last month unexpectedly struck down Utah’s ban on same-sex marriage.

“I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” Mr. Holder said in the video. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”

The Justice Department’s intervention added a further sense of whiplash to the highly charged dispute, which began on Dec. 20 when a Federal District Court judge, Robert J. Shelby, ruled that Utah’s constitutional amendment limiting marriage to one man and one woman violated the federal Constitution.

As a matter of law, the status of these marriages is not entirely clear, but it strikes me that Utah is on shaky legal ground here.

After Judge Shelby issued his opinion last month, both the Governor’s Office and the County Clerk’s offices across the state determined that the state was obligated by law to abide by the letter of the ruling unless and until a contrary ruling was received from either Judge Shelby himself or a higher authority. The Utah Attorney General arguably conceded this point by the very act of apply for a stay with Judge Shelby while at the same time applying for stays from the 10th Circuit before Judge Shelby had ruled on the initial application. Those first applications to the 10th Circuit were, of course, rejected because they were premature. However, when Judge Shelby rejected the request for a stay, Utah submitted a new request for a stay to the 10th Circuit which was ruled on based on the merits. When the 10th Circuit rejected that application, Utah submitted a stay application to the Supreme Court via Justice Sonia Sotomayor, who is the Circuit Court for the 10th Circuit. Throughout that time period, and indeed until the Supreme Court announced its ruling granting the stay last Monday, gay and lesbian couples, acting in reliance upon the state’s decision to comply with Judge Shelby’s Order, applied for and received marriage licenses and in at least 1,000 cases went through with the proper steps to solemnize their marriages under Utah law. Now, the State of Utah is saying that these marriages are not valid under Utah law.

This situation is quite similar to what happened in California in 2008. In June of that year, the State Supreme Court in a case titled In Re Marriage Cases, ruled that same-sex marriage must be recognized under California law. In response, every County Clerk in the state began issuing marriage licenses for same-sex couples and same-sex people went through the process to apply for license and get married. In the meantime, of course, those opposed to marriage equality managed to get Proposition 8, a voter initiative that would overturn the Court’s decision on the 2008 ballot. That initiative passed, but in the meantime thousands of same-sex couples, including many celebrity couples, including people such as Star Trek actor George Takei, had taken advantage of the ruling in In Re Marriage Cases to marry their long-time partners. In a decision handed down in 2009 that also included challenges to Proposition 8 itself under state law that proved unsuccessful, the California Supreme Court ruled that the marriages performed between the time of their initial ruling and the passage of Proposition 8 must be considered legal and valid.

Although smaller in number, the married same-sex couples in Utah find themselves in a legal position similar to those who were married in that period in California before Prop. 8 became law. As an initial matter, it strikes me that there ought to be a distinction made between those people who had received marriage licenses and gone through the remaining steps required to solemnize their marriage under Utah law(and please note that my understanding of those conditions is based on only a rudimentary review of material available via a Google search, so I could be incorrect here) before the Supreme Court stay became effective and those who had received a marriage license but whom, for whatever reason, had not taken those final steps required to create a valid marriage under state law. The second group, it strikes me, is likely out of luck by virtue of the fact that they had not taken the proper steps to validate their marriage, which seems to require the performance of a marriage ceremony by someone legally permitted to do so under state law, before the state went into effect. The first group, however, is in a very different position. Before the Supreme Court issued its ruling on the stay, they took all the steps necessary to create a legal and binding marriage under state law and, most importantly, there is nothing in the Supreme Court’s ruling on the stay application that makes its holding retroactive. All of this makes the position that the State of Utah is taking puzzling to say the least.

At this point, it seems fairly clear that the issue of the validity of these marriages, at least as far as Utah is concerned, will have to be resolved in Court. The question is which Court ought to be the proper venue to decide this question. Ordinarily, this would be an issue of state law under the jurisdiction of state courts. However, given the fact that it was a ruling from Judge Shelby based on the United States Constitution there is a fairly strong argument that this is a question that needs to be addressed directly to him. It seems to me that the default position ought to be that any marriage performed between the time of Judge Shelby’s ruling and the issuance of the Supreme Court stay must be considered valid under both State and Federal Law. Indeed, the State of Utah is arguably risking contempt of court charges for failing to recognize those marriages. The law being what it is, though, it will likely be some time before we get anything approaching a definitive ruling on the matter.

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    All of this makes the position that the State of Utah is taking puzzling to say the least.

    Not even a little puzzling. Conservatives are aszholes. This is just aszholes being aszholes for the pleasure of their aszhole constituents.

    Like or Dislike: Thumb up 14 Thumb down 1

  2. al-Ameda says:

    “The State of Utah is now trying to take back all of these marriages by refusing to recognize them,” Mr. Rosky said in a statement. “This is an unprecedented step, which inflicts severe harms on more than 1,000 families.”

    It’s Utah – not exactly unexpected.

    Like or Dislike: Thumb up 7 Thumb down 0

  3. KM says:

    Did anyone really expect any different? Its Utah, home of the Mormon faith that was the driving force behind Prop 8. They’re not going to go quietly. They’re not going to accept defeat gracefully. This is an example of what going to happen when other conservative states get dragged into the 21st century. Ugly, irrational and all-around embarrassing mess that historians will cringe over 100 years from now.

    Personally, I’m waiting for the next “Schoolhouse Door” moment. I want to be able to tell my grandkids that I knew where I was when injustice was taken down another peg and we came another step closer to living up to the Dream.

    Like or Dislike: Thumb up 11 Thumb down 2

  4. stonetools says:

    @michael reynolds:

    Not even a little puzzling. Conservatives are aszholes. This is just aszholes being aszholes for the pleasure of their aszhole constituents.

    Isn’t it just that simple ? We repeatedly bend over backwards to find reasons to describe conservative stands on the economy, jobs programs, unemployment compensation, Obamacare, Medicaid expansion, etc, as “principled” and “rational”, yet the simplest explanation for all conservative positions is that conservative constituents and their representatives are aszholes who want to screw over the poor, the weak, minorities and disenfranchised. You are what you habitually do, and that’s what they habitually do.
    Doug, you may not want to admit it, but conservative positions on on social spending are completely consistent with their positions on SSM. Just sayin”

    Like or Dislike: Thumb up 8 Thumb down 0

  5. T says:

    “It doesn’t have any effect on your life. What do you care?! People try to talk about it like it’s a social issue. Like when you see someone stand up on a talk show and say, “How am I supposed to explain to my children that two men are getting married?… I dunno. It’s your shitty kid. You fuckin’ tell ‘em. Why is that anyone else’s problem? Two guys are in LOVE and they can’t get married because you don’t want to talk to your ugly child for five fuckin’ minutes?”

    - Louis C.K

    Like or Dislike: Thumb up 6 Thumb down 0

  6. michael reynolds says:

    @stonetools:

    When you whip out your Occam’s brand razor, yep, you find dickishness is the simplest explanation. In the upper reaches it’s more weighted toward greed, but your standard non-wealthy conservative is just as aszhole looking to screw someone else to make himself feel more important. Ideology flows from character, not the other way around.

    Like or Dislike: Thumb up 3 Thumb down 0

  7. HiPlanesDrifter says:

    Half the 1000 should be divorced by the time it gets to the 10th Circuit anyway & probably 3/4 by the time it reaches SCOTUS.

    @Michael Reynolds: Not even a little puzzling. Conservatives are aszholes. This is just aszholes being aszholes for the pleasure of their aszhole constituents.
    Okay, Van Jones – stop your trolling & get back to that tree you were hugging. In case you don’t know, there’s not a lot of substance in name-calling. It’s as shallow as a kiddy pool.

    Like or Dislike: Thumb up 0 Thumb down 12

  8. michael reynolds says:

    @HiPlanesDrifter:

    Tree hugging? Ah hah hah. I drive a big fat Benz, puff even bigger and fatter cigars, ignore recycling, run my heat with the g-damned sliding glass doors open, hop on a plane without so much as a thought about contrails in the atmosphere, and stocked up on bootleg incandescent bulbs, remove the flow restrictor from my shower head . . . I’m an eco-criminal. So, yeah, that would mean you’re just totally wrong.

    And by the way? Conservatives are aszholes motivated largely by aszholery.

    Don’t believe me? Explain why conservatives who do not pay income taxes, and are likely never going to pay income taxes, still get so worked up over tax rates on the rich? Explain that in a way that doesn’t come back to being aszholes whose real concern is that a black child might get a free lunch.

    Like or Dislike: Thumb up 5 Thumb down 0

  9. michael reynolds says:

    @HiPlanesDrifter:

    Oooh, I thought of another one: as I write this I’m sitting on my deck running an electric heater and a propane heater, just so that I can sit out here looking at the bay. And you know what? I do it every day.

    Now my online pal John Personna is going to come and ream me out for stabbing mother earth in the neck. Yeah. I’m a tree-hugger.

    See, that’s what happens when you rely on cliche rather than taking the time to actually figure out what’s going on.

    Like or Dislike: Thumb up 8 Thumb down 0

  10. stonetools says:

    Note here that the Obama Administration-which Doug despises-yet again does the right thing. Is the Administration’s position on tax rates really so repellent that it trumps the Administration’s forthright championing of SSM? Libertarian thinking is strange.

    Like or Dislike: Thumb up 4 Thumb down 0

  11. stonetools says:

    @HiPlanesDrifter:

    In case you don’t know, there’s not a lot of substance in name-calling

    Its not really an ad hominem if it accurately describes a person’s character and conduct. Stalin, for example, really was a mass murderer. And conservatives really do screw over the poor and the disadvantaged and reward and protect the rich and powerful, in every position they take and every law they make. The position the Republican led government of Utah takes here is just a typical conservative move. It would shock me if they did anything else, frankly.

    Like or Dislike: Thumb up 9 Thumb down 0

  12. I’d should test with you here. Which is not something I normally do! I get pleasure from studying a put up that may make folks think. Additionally, thanks for permitting me to comment!

    Like or Dislike: Thumb up 0 Thumb down 5

  13. jd says:

    It is Dique Moves like these that hasten the acceptance of same-sex marriages. The Diques do not yet realize that so many gays and lesbians are now out of the closet that 80% of straights know and respect someone who they’ve discovered were LGBT. It’s not being a ‘one-issue voter’ to turn against those who want to harm people you know.

    Like or Dislike: Thumb up 4 Thumb down 0

  14. HiPlanesDrifter says:

    @michael reynolds

    Explain why conservatives who do not pay income taxes, and are likely never going to pay income taxes, still get so worked up over tax rates on the rich?

    ROFLMAO. Does the name Eric Geithner ring a bell . . . Democrat appointee who didn’t pay his taxes & wants everyone else to pay confiscatory rates. Marc Rich who had to leave the country b/c of criminally avoiding taxes, & pardoned by Bill Clinton. Other examples abound. How about John Kerry who moved his $7 million yacht to Rhode Island to avoid paying tax to MA. You’re funny!

    Like or Dislike: Thumb up 0 Thumb down 7

  15. HiPlanesDrifter says:

    michaelreynolds, please explain to me how Detroit is broke & run for 40+ years exclusively by Democrats, if Republican policies are so egregious – and Texas, solid red state, is doing great. People are fleeing Democrat blue states in droves b/c of the horribly confiscatory tax rates & nanny state do-as-I-say-not-as-I-do policies. Detroit pop, circa 1950s – 1.5 to 2 million – today: maybe 750K. Why is that?

    Moreover, how does the nobility of providing free lunches to children by taking someone else’s money by government force exceed that of wanting to keep money that is EARNED? You want to provide free lunches to everyone? Then go start your own Apple or Microsoft, make billions & give away as much as you like. Either way, I don’t think either one of us would argue that as a blessed & civilized society, we shouldn’t provide for the truly infirm & needy. The problem is that SS, Medicaid, EBT, TEA, TANF and many other govt programs are rife with fraud, waste & abuse to the tune of billions.

    Like or Dislike: Thumb up 0 Thumb down 10

  16. humanoid.panda says:

    @HiPlanesDrifter: You’ve neglected to mention the IRS, Benghazi, Fast and Furious, and Solyndra. Next time, work harder.

    Like or Dislike: Thumb up 6 Thumb down 0

  17. JoshB says:

    @HiPlanesDrifter:

    Actually, the name Eric Geithner doesn’t ring a bell.

    Like or Dislike: Thumb up 2 Thumb down 0

  18. jd says:

    @HiPlanesDrifter: “The problem is that SS, Medicaid, EBT, TEA, TANF and many other govt programs are rife with fraud, waste & abuse”

    Or maybe not.

    Senator John Thune of South Dakota and Rep. Marlin Stutzman of Indiana, both Republicans, introduced legislation to save $30 billion over 10 years from SNAP, purportedly by “eliminating loopholes, waste, fraud, and abuse.” Once you dig into their fact sheet, however, none of the savings actually come from fraud, but rather from cutting funding and tightening benefits. That’s probably because fraud levels in SNAP appear to be as low as with the other “pure welfare” programs we just touched on: “Payment error” rates — money sent in incorrect amounts and/or to the wrong people — have declined from near 10 percent a decade ago to 3 to 4 percent today, most of it due, again, to government error, not active fraud. The majority of food-stamp fraud appears to be generated by supermarkets “trafficking” in the food stamps. Beneficiaries intentionally ripping off the taxpayers account for perhaps 1 percent of payments.

    Like or Dislike: Thumb up 4 Thumb down 0

  19. Barry says:

    @HiPlanesDrifter: “Half the 1000 should be divorced by the time it gets to the 10th Circuit anyway & probably 3/4 by the time it reaches SCOTUS.”

    “Okay, Van Jones – stop your trolling & get back to that tree you were hugging. In case you don’t know, there’s not a lot of substance in name-calling. It’s as shallow as a kiddy pool. ”

    Pot, meet kettle.

    Like or Dislike: Thumb up 5 Thumb down 0

  20. michael reynolds says:

    @HiPlanesDrifter:

    It’s always good to hear from Foxbots – saves me watching the network myself. Plus it’s kind of sweet the way the newly-minted, well-brainwashed sophomores come bursting out full of ideas they think will allow them to vanquish the liberal foe.

    But then, it always goes bad. The graduates of Foxbot University don’t understand that out in the rest of the world their nonsense will be challenged, and they’ll be shown to have nothing.

    None of your responses were on-point. First you decided I must be a tree-hugger. Why? Because that’s the image you were indoctrinated with. Then when I ask you to explain a fairly simple philosophical disconnect — poor Republicans who don’t pay taxes rabidly obsessed with saving me money on taxes — you of course whiff. Air. Nothing. You counter with, “Oh yeah, how about that Democrat who didn’t pay taxes,” which of course you don’t even realize is entirely off-point.

    Dude, sorry to be the one to break this to you, but graduating from Foxbot U? About as useful as getting one of those online diplomas from Jerry Falwell’s “college.” Your education actually made you less informed. And now all your stupid is right out there waving in the air where people can point and laugh.

    Poor Foxbot.

    Like or Dislike: Thumb up 4 Thumb down 0

  21. michael reynolds says:

    @HiPlanesDrifter:

    Oh, wait, I think I recognize the stupid. Is this Jenos switching ID’s because he’s been so humiliated for so long here? Is it? Is that you, Indiana Jones?

    Like or Dislike: Thumb up 2 Thumb down 0

  22. PJ says:

    @michael reynolds:

    Is that you, Indiana Jones?

    I prefer to refer to him as Mutt Williams.

    First only because I like Indiana Jones and utterly dislike Mutt Williams. Well, I utterly dislike the entirety of the last Indy movie.

    But, well AFTER I decided to refer to him as Mutt Williams, it turned out that both Jenos Mutt Williams and Shia LaBeouf both seems to have problems with copying text without giving proper attribution.

    It’s amazing how things turn out…

    Like or Dislike: Thumb up 3 Thumb down 0

  23. Andre Kenji says:

    @HiPlanesDrifter:

    and Texas, solid red state, is doing great.

    http://www.trbimg.com/img-52338215/turbine/bs-ed-kal-rick-perry-20130915/600/600×444

    Like or Dislike: Thumb up 1 Thumb down 0

  24. HiPlanesDrifter says:

    Oops – Tim Geithner – got my corrupt public officials mixed up. Sorry.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. David in KC says:

    @HiPlanesDrifter: I must be a freaking statistical anomaly, been with my partner for going on 17 years, married for two, a couple of our best friends have been together for over 10. My partner’s sister and her girlfriend have been together for over 5 years and just got married (yeah, two kids, both gay, their mom says ” I always said I don’t care if it’s a boy or a girl, as long as it’s healthy, but I didn’t think it would get this screwed up”). I know that anecdotes are not data, but since you didn’t cite any data I don’t see the need to do your research for you.

    Like or Dislike: Thumb up 1 Thumb down 0

  26. An Interested Party says:

    Half the 1000 should be divorced by the time it gets to the 10th Circuit anyway & probably 3/4 by the time it reaches SCOTUS.

    That’s quite laughable considering what the divorce rate is for heterosexuals…perhaps you and your ilk should clean up your own messes before you start trashing others…

    Like or Dislike: Thumb up 2 Thumb down 0