1,300+ Same-Sex Marriages ‘On Hold’ in Utah. Now What Happens? Are They Valid?

There's a rule of thumb in marriage law: marriages are valid when and where performed. In other words, if you married in Nebraska on December 31, 2013 and if your marriage was legal in Nebraska on that date, your marriage is, and will be, valid. It has to be that way. Otherwise, no marriage would be safe.

HerbertWhat's more, the stay and the validity of the marriages already performed have nothing to do with each other: Just because the Supreme Court granted the stay does not mean Governor Herbert has grounds to invalidate the marriages.

Stays are granted to maintain the status quo because doing otherwise would cause irreparable damage. That is the most important requirement and, more often than not, is the sole legal basis on which stays are considered. Stays also require a likelihood of success on the merits, meaning that the party seeking to delay an adverse ruling has to show that they are more than likely to win the underlying case. Finally, stays are granted when, on balance, the benefits of holding everything in abeyance outweigh the harms.

As you and I both know, sometimes, there is more politics than law in these decisions. More controversial cases tend to get more stays than noncontroversial cases; high profile cases get more stays than those that fly under the radar.

But even if a stay gets granted for improper reasons, none of those reasons change the validity of the underlying marriages. Supposed irreparable damage refers to the continuation of the activity to be stayed, not to the ones already done. The balance of the harms also says nothing about the propriety of recognizing the already-performed marriages.

The last element is likelihood of success. Likelihood of success is, first and foremost, a probability function. But scholars are already debating whether the success of Utah's appeal speaks to the validity of the underlying marriages. Judge Shelby's decision declaring Utah's ban on same-sex marriage is being appealed to the Tenth Circuit Court of Appeals. If the Tenth Circuit reverses, i.e., agrees with Utah, it is not entirely clear what happens to the 1300-plus marriages performed over the last three weeks. Utah wants them invalidated, and that could happen.

There is precious little precedent on this. In 2004, New Mexico's Sandoval County married about 60 same-sex couples after the county clerk found that there really wasn't any New Mexico law against gay couples marrying. She was right; there wasn't. The attorney general stopped the county clerk from issuing any more licenses to gay couples and subsequent clerks refused to recognize the validity of the ones granted licenses. But just last year, the new attorney general of the state said only a court of law could deny the marriages' validity. That took us to a unanimous state supreme court decision on marriage equality.

Jx8arnnc-2California also gives us a clue as to what could happen. Now-Lieutenant Governor Gavin Newsom, who was then the mayor of San Francisco, starting marrying gay couples in 2004. He gave out about 4,000 licenses, all of which were invalidated by the state supreme court. Among those whose marriages were invalidated were Stuart Gaffney and John Lewis (right) who, along with many other equal rights pioneered, filed a state lawsuit seeking the right to marry. Those cases – In re Marriage Cases — brought us marriage equality in California before Prop 8.

If anything, the progress of marriage equality litigation shows a low likelihood of success, but our precedent is less clear on what happens to marriages already performed. It may take some time before we know the answer, and that is not just frustrating, it is manifestly unjust. The stay was unjust, the appeal is unjust, the discrimination is unjust for this very reason.

The state may not want to recognize the marriages performed in Judge Shelby's equality window, but the federal government should. The federal government, according to instructions from agencies like the IRS and the Office of Personnel Management, will recognize marriages performed in the states as long as those marriages were performed in a state that recognized those marriages. That is the "state of celebration" rule. Utah recognized the validity of same-sex marriages when the 1300 marriages were performed. And nothing has changed. The stay granted by the Supreme Court did not invalidate those marriages. Nor did it undo Judge Shelby's decision, despite what some commentators have suggested. Governor Herbert's decision to put the marriages "on hold" does not deny their validity, either. Everything is just on hold. And that doesn't change the fact that the marriages were valid in Utah when they were performed. That's the end of the story.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is a professor and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


  1. JackFknTwist says

    The validity of Marriages depends on the laws of Jurisdiction and Domicile.
    Jurisdiction covers the formalities the couple must abide by and the law of the Domicile governs matters of Capacity of the parties.
    So a Mass. boy should be able to marry a Netherlands boy in Amsterdam.

    That marriage should be valid in all the world…..they abided by the formalities and had capacity.
    Mass. should recognize the marriage , Netherlands should recognize it and all States of the USA should recognize it.
    This is International Private Law. It’s not new. It has always been the way. Foreign countries recognize each others contracts.
    And that’s what a marriage is – not some quasi mystical religious tribal rite.

    I agree with Ari those marriages in Utah are valid because they conform with the laws of Jurisdiction and Capacity in the ‘place of celebration’ as he calls it.

    I go further and say that all marriages which comply with the local laws of jurisdiction and the domiciliary laws of Capacity are valid. That’s what the Utah marriages did – they complied with the laws of the place of performance of those marriages.
    They cannot be touched.
    That would need a decision which would invalidate all same sex marriages, and would require the SCOTUS to rule on the constitutional validity of same sex marriages….which they slithered out of doing in the Prop.8 case. I’m not sure this a road the SCOTUS should go down.

  2. Steve says

    She could have ruled individually against granting a stay, but she broke under pressure from religious and conservative groups, and passed along the task to the SCOTUS where the stay was handed down.

    She also broke under pressure from nuns concerning the birth control mandate in Obamacare. That sentence in itself would be laughable if it didn’t affect the reproductive choice of millions of women.

    What is the next religious complaints seeking legal remedy? It’s against our religion to hire gays and lesbians, or Blacks and Mexicans, or to pay women fairly? It’s against our religion to pay taxes?

  3. JackFknTwist says

    The ‘stay’ did not invalidate the marriages which were valid in the place of performance – Utah.
    The ‘stay’ only delayed any further marriages under Judge Shelby’s ruling.

  4. JackFknTwist says

    The ‘stay’ did not invalidate the marriages which were valid in the place of performance – Utah.
    The ‘stay’ only delayed any further marriages under Judge Shelby’s ruling.

  5. says

    President Obama needs to come out and declare that for Federal purposes that while the State of Utah may have put these marriages “on hold”, the Federal government does not.

  6. JackFknTwist says

    How about equal exemptions for atheists – no more gods in Pledges, on coins, in public places, no tax money to any institution which does not have equal teaching of atheism.

  7. Zlick says

    The number I heard yesterday was $56,000 taken in by the State of Utah for marriage licenses issued. The next step tactic I heard that I agree with most is a class action lawsuit by those 1300 couples. Thoughts on that, Ari?

  8. Zlick says

    By which I mean breach of contract, conversion, probably a host of other causes of action by some clever lawyers, eh? I hope they don’t take this lying down, and I doubt they will.

  9. Michael M. says

    When Ari first purported to school us on the law of stays, he completely ignored 2 of the 3 prongs in the stay analysis, listing only irreparable harm. I congratulate him on finally stating all the factors. However, perhaps defensive over his initial, deficient post on this topic, he writes that irreparable harm “is the most important requirement and, more often than not, is the sole legal basis on which stays are considered.”

    Wrong. While irreparable harm is the most important of the 3 factors, it would never be the “sole legal basis” on which a stay is considered. A court always considers all 3 factors, never just one. Perhaps Ari is trying to say that the irreparable harm factor trumps the other two factors “more often than not”? Maybe, maybe not. It seems more plausible that irreparable harm and likelihood of success would be aligned in most cases. In any event, what evidence does Ari have to support such an empirical claim?

    As to the interplay b/t the stay and UT’s recognition of these marriages, Ari’s analysis fails to look at the language of the injunction that was stayed. If that injunction also contains the declaration that UT’s Amendment 3 is unconstitutional, then that declaration is stayed as well. Accordingly, Amendment 3 would be current law, and (the argument goes) UT would be barred from recognizing these marriages as marriages. A separate issue is what happens to these marriages if Utah wins the case on appeal.

    All of this leads us into interesting legal questions about the due process rights of the married gay couples, the degree of reliance by the married couples on the district court ruling, and the applicability of a species of retroactive application of Amendment 3. Needless to say, none of these novel and complex issues is addressed by Ari.

    Ari, please stick to defending anti-gay bullies like Dharun Ravi. It is what you do best.

  10. Richard says

    I think that the 1300 marriages performed should remain valid, BUT only for now. Utah gave express permission to the county clerks to issue the marriage licenses during the open window and those marriage do need to remain valid. However, the appeal was always in play meaning that the decision is not final. If the 10th circuit or, if it gets there, Supreme Court reverse the decision, then all marriages from the very beginning of the case should be invalidated, including the ones that were done under the pretense of legality because of the looming appeal because the marriages would have never been allowed in the first place and Amendment 3 would never have been repealed.

  11. says

    My heart goes out to these couples. ***I don’t understand all of the legal stuff*** but this “state of celebration” rule you mention, are you saying the federal government will have to recognize these marriages? I certainly hope so… especially with DOMA’s death, right? Being just a regular Joe, this stuff goes WAY over my head and I am sure it terrifies these couple who already are married, as well.

    Michael M., you are welcome to answer as long as you aren’t as snarky to me as you are with Ari, LOL. 😉

  12. patrick says

    While the individual states play fast and loose with our lives and civil rights, the best thing we gay folks who want to be married can do to cover our own asses- at the federal level– is go to the nearest state that has marriage equality and get married. My husband and I did it on our 24th anniversary in October and it was well worth the cost. Marriage tourism may be a stop gap for us, but the more legal legitimacy we stack up the better.

  13. Joseph says

    The marriages performed as a result of Judge Shelby’s ruling are LEGAL AND VALID. The licenses issued make no distinction between same-sex and straight couples, except by name. Utah’s refusal to grant recognition should theoretically apply to all marriages performed in that time period, which of course is ridiculous.

  14. Craig says

    I find it odd that Ari just mentions the common law conflict of laws principle of lex loci celebrationis, but not the possible constitutional claims to uphold the validity of the marriages. Lex loci celebrationis can be vitiated by statutory law and perhaps has in the case of same sex marriage given many state purport not only to prohibit same sex couples from marrying, but to hold as void any same sex marriage without regard to the place of celebration or legal validity of the same sex marriage in where and when it was performed.

    This may be one of the cases where the very narrowly limited interpretation of the Privieleges or Immunities Clause of the 14th Amendment can come into play. Given the marriage precedents in Loving, Zablocki and Turner and the federal recognition principle of Windsor, the Supreme Court has firmly established that marriage is not only a fundamental right owing to one’s state citizenship, but also a federal right. Under the Privileges of Immunities Clause, a state can’t simply void such a vested right. We’ve seen this applied for the right to hold public office and the right to interstate travel. The former is important in that it is a federal right, but administered by the states even for elections of members of the Federal government (Representatives, Senators, Presidential Electors) which is comparable to the right to marry being of federal as well as state character, but administered by the states.

  15. George M says

    In my opinion Utah has just charged people fees for legal documentation in bad faith. If they do not recognize those marriages the state should have to refund those fees and pay damages to each and every couple they issued them to. It also does not speak well for the state to not honor legal documents that they themselves issued.

  16. says

    Following up on George M’s comments, and those of others, this sounds like a classic situation for estoppel, assuming Utah uses the common law definition: a statement or action (issuing a license for a fee) in reliance upon which a party changed its position (from single to married) to its detriment (stood in line, paid the fee, underwent the ceremony) which the original actor now attempts to repudiate.
    As Lord Coke said, “The law stoppeth up his mouth that he not be heard to the contrary.”

  17. tyler says

    Let’s not confuse this ruling with the stay re the nuns and reproductive “choice” of women. Not that anything I did in college would lead to a pregnancy, but I was responsible for my sexual activity. The last thing I want is for some outside entity such as the government or insurance company to be involved with my sex life by providing birth control. I just do not trust them. One day I can see a report about how certain communities go through more condoms than others therefore they are promiscuous.

  18. AJUNTAMENT says

    If I had been married to my partner in Utah during that short window of opportunity you can bet I’d be suing that State right now, right down to (but not limited to) the cost of dry-cleaning my suit!

  19. Stephen R. Stapleton says

    “Everything is just on hold.”

    No, everything is not on hold. Life isn’t on hold. There is every possibility someone in those 1,300 marriages could die for example. The probate of his estate will not be “on hold” awaiting a possible ruling from the Supreme Court, nor do I think even a Utah probate court would recognize a governor’s ability to annul a marriage. One of the 2,600 people could have a medical emergency and the next of kin may well have to make a decision about health care. Is the next of kin his spouse or his parent? One of those 1,300 couples may try to buy a house and want to get a loan using both of their incomes.

    Life doesn’t stand still, but is a constantly moving target. Those marriages are valid and will, in all likelihood, remain so. Simply too many other things outside the scope of the stay will happen to make any other decision impractical.

  20. Tyler says

    Oh hey, Rick. I see you’re posting inherently misogynistic and homophobic comments under my name again like the coward troll that you are. I saw you doing the same to Derrick on another thread. You’re a really classy sociopath.

  21. Joey says

    Ok, well if all same sex marriages which were performed during that window of opportunity are “null,” why not all of the “traditional” ones too? I mean, they were subject to the same laws, at the time, as we were…if that were to happen, you can bet your ass they would be quick to fix this gordanian knot!

  22. J says

    @ZLICK: If we can go by the money they charged in Salt Lake City, $80.00 per couple ($40.00 for the license, $40.00 for the ceremony – and you can bet that most folks had it right there!), then it’s more like $104,000+ that is now being used AGAINST these couples!!!

    Ari, I’ve got another question: What if one lives in Utah, but married outside the state before it was legal there, and didn’t renew those vows during the window of opportunity because at that point the marriage would have become legal in Utah, too? If a class action suit were to be filed, the number of couples could potentially be much higher if those couples joined in, correct???

  23. TKinSC says

    You guys are making this way too complicated. If the district judge’s order allowing same-sex marriage was improper, then so too are all the marriages entered into pursuant to it. In the meantime, while the stay is in effect, the order will be treated as improper. Therefore, same-sex couples will be treated as unmarried by the State of Utah. (I imagine the federal government will do likewise, but that is a separate issue.)

    The only complicated part is how to resolve things once final judgment has been rendered. If the state wins, how do you go and undo the marriages (claw back benefits given, refund license fees, etc.)? And if the state loses, how do you calculate the benefits the couples would have received if their marriages had not been placed “on hold”?

  24. says

    The State of Utah will try to treat the married same-sex couples as unmarried, but this will be challenged. (The ACLU is already on it.) Just because it’s what the anti-gay administration in Utah wishes to do it doesn’t necessarily mean they can. So, yes, it is rather complicated.

    Meanwhile, Utah will also have to try to make a rational argument why Judge Shelby’s decision should be overruled. They have their work cut out for them.

  25. Zlick says

    An appeal is not a Do-Over. Utah does not simply get a chance to re-try its case. An appeal cannot be based on The Trial Judge Got It Wrong. Actual ERROR has to be shown. Not an opinion that there was an error in judgment; there has to be allegation of a procedural error, or a conflict of interest, or some other actual MISTAKE.