Gay Marriage | Gay Rights | News | Supreme Court | Utah

Validity Of Utah Same-Sex Marriages Questioned, Will Likely Require Litigation

UtahThe window for same-sex marriages in Utah was short, and the aftermath may not be so sweet. Now that the Supreme Court has granted a stay on marriage licenses for same-sex couples until the case can be appealed, Utahns who got married between December 20th and the beginning of the new year are in limbo. Many legal experts are floating questions about the marriages' continued validity.

What does seem clear is that the issue will likely require litigation outside of the appeal process for the original lawsuit, Kitchen V. Herbert, which inspired District Judge Robert Shelby to strike down Utah's ban on same-sex marriage. When legal action will occur, and what its outcome may be, are of course in question as well.

The Washington Blade reports:

Now that the stay is in place, the attorney general’s office itself has expressed uncertainty about whether the marriages performed in the state will be considered valid. In a statement, [Attorney General Sean] Reyes (below and right) cited a lack of precedent on the issue.

Seanreyes“This is the uncertainty that we were trying to avoid by asking the District court for a stay immediately after its decision,” Reyes said. “It is very unfortunate that so many Utah citizens have been put into this legal limbo. Utah’s Office of Attorney General is carefully evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally.”

Although Reyes maintains he won’t rush into a decision, pressure will be on the state to decide soon. Now that 2014 has begun, gay couples that recently married in Utah will be filing their taxes and will need to know whether they qualify as married or single.

EqualityutahThere are several possible scenarios. One may find gay Utahns in the same boat as San Franciscans who married under mayor Gavin Newsom only to have their legal unions invalidated; another, straight out of California, could see the marriages remain valid, as they did after California citizens voted to approve Prop 8 in 2009. Yet another possibility may find same-sex marriages in Utah receiving federal recognition even while Utah does not recognize them. Opinions differ, though, and it is unclear how smoothly further action will occur. 

Several people, including Shannon Minter of the National Center for Lesbian Rights and Suzanne Goldberg, the co-director of Columbia University's Center for Gender and Sexuality Law, agree that the marriages were valid when entered, and that should improve their chances of remaining valid under federal and state scrutiny.

“The federal government should recognize them for most purposes because federal recognition for almost all federal benefits hinges only on whether a marriage was valid when entered,” Minter said...

“It is unlikely that the marriages already performed in Utah will be invalidated,” Goldberg said. “Those marriages were performed in accordance with Utah law and a later change in the law, if there is one, should not undo them.”

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  1. the residents were put in this spot by the bigots in state government who refused to abide by a court ruling and a supreme court that really is nothing more than a shadow of what previous courts were when it comes to civil rights

    Posted by: walter | Jan 7, 2014 7:37:30 PM

  2. Hence why there should have been a stay issued. Everyone knows this case is going to be fast tracked to the Supreme Court. It will issue clarity rather than leaving those that married in limbo.

    Posted by: Perry | Jan 7, 2014 7:42:55 PM

  3. The situation isn't parallel to when Gavin Newsom issued marriage licenses to gay couples because he didn't have the authority to do so.

    Clerks in Utah, on the other hand, had authority from the court decision and the lack of a stay. Don't see how those will be invalidated, even if they try to pull them out of families' hands. (Nice PR there, Utah.) Gotta love how they pretend to be so concerned about the legal limbo of the couples when they're the ones causing the limbo and the harm.

    Posted by: Ernie | Jan 7, 2014 7:59:57 PM

  4. It's only unclear to politicians who dislike marriages between gay people. Legally, it's very cut and dry. Marriages performed under court order are valid. Marriages performed were legal under Utah law at the time performed. All the talk about reversals and stays are background noise. Marriages performed in 2004 in California were not legal. They were not performed under court order or under legislation. Marriages performed in 2008 were valid- legal- marriages and the SC of california rightly pointed out that retroactively invalidating legal contracts would be a gross violation of due process. In Utah, the state will likely refuse to recognize the marriages but the marriages themselves will be valid for all other purposes (federal law and under the laws of marriage states)

    Posted by: Dana Chilton | Jan 7, 2014 8:10:55 PM

  5. There is no question - these 1,000 Utah couples should remained legally married, just as the 18,000 California couples who were married prior to Prop 8 remained legally married after Prop 8 passed. This shows why these decisions should always be immediate from a legal perspective.

    Posted by: DB | Jan 7, 2014 8:15:54 PM

  6. Gavin Newsom did not have any legal authority as the mayor of a large city to declare same-sex marriage legal in the State of California. His actions were wonderful, and got the ball rolling toward eventual legalization by courts of law - but those marriages in San Francisco were never legal for one minute.

    The Utah situation is much more analogous to the Prop 8 scenario, as those Utah marriages were legal when they were performed.

    Posted by: Zlick | Jan 7, 2014 8:16:19 PM

  7. @Dana -- actually it is unclear to most of the Utah citizens, whose brains are clouded by mormonity.
    To them, NOTHING that is not as the mormon crap says it must be is OK or able to be understood.

    Utah may well decide not to recognize the marriages, but they would be stupid (as they have been already) because those married would bring suit, and win, further pulling out the nails in the lid that mormonity has over Utah

    Posted by: Bob | Jan 7, 2014 8:19:12 PM

  8. Perry, these cases won't be "fast tracked to the Supreme Court." The Supreme Court may take it up. Or it may decide to wait for more cases (which is more likely imo). As for issuing a stay, Utah's acting DA did not ask for a motion pending decision, so the Court did not have to give him a stay on its own. Don't blame the Court, where the incompetence clearly resided with the acting DA.

    Posted by: Victor | Jan 7, 2014 8:22:38 PM

  9. The SF Gavin Newsom marriages were like those in PA, no legal basis, just local authorities. This is different from NM where there was nothing in state marriage law saying marriage was only for a man and a woman. The Utah case is clear that this was authorized by a federal judge so is more like the pre-Prop8 marriages in CA.

    Posted by: Jim in TO | Jan 7, 2014 8:24:25 PM

  10. While I'm sure the Gov. would like to invalidate all those marriages, the problem is that the clerks acted in faithful accommodation with a court ruling. Simply because the ruling will be appealed would not change that. The state could have chosen to not appeal the ruling, and could have chosen not to pursue a stay, so the actions of the state have no bearing on the legitimacy of the marriages already performed.

    Posted by: anon | Jan 7, 2014 8:27:18 PM

  11. There is no question. The courts legalized marriage for gay couples to be implemented immediately after the ruling . There was no stay for time being and nearly 2thousand gay people (nearly 1thousand couples) received a legal marriage license during the time it was legal. Therefore the marriages are valid (legal) and the state will abide by the law willingly without any complaints or they will be physically forced to.

    Posted by: Sean | Jan 7, 2014 8:30:50 PM

  12. The old farts in the Supreme Court should have explained that the stay only applies to marriages after the date of the stay order and will not affect those before it.

    Posted by: simon | Jan 7, 2014 8:32:08 PM

  13. Sean Reyes and the rest of the mor(m)ons will bitterly regret the day they attempt to disqualify existing, LEGAL marriages as a result of Judge Shelby's ruling. Not sufficiently shamed with all the crap they, the mor(m)ons pulled and the bad publicity that followed in the wake of Prop H8? Cruising for another ass-whipping are we? Just how damn stupid are they, anyway? It took 5 years to undo the damage caused by Prop H8, it won't take nearly as long the next time, if there is a next time. It's time for the "prophet" to have another revelation and save his "church".

    Posted by: Joseph | Jan 7, 2014 8:52:05 PM

  14. The worst thing that could happen to the Mormons is to be blamed for the destruction of over 900 families, which is what can easily be pinned on them if these marriages are somehow reversed. Prop 8 was a PR disaster for them. Imagine the media coverage of despairing couples crying bitterly over having had their legal marriages snatched away by a ruthless monster church.

    To the extent that the Mormons have any influence over state politics (ahem), I think it's safe to say these marriages are secure.

    Posted by: Trev | Jan 7, 2014 9:11:55 PM

  15. If this affected me (and because chaos can be fun) I'd back-date my tax return to January 1st and blame the post office for not getting around to postmarking and delivering it in a timely manner. "Prove me wrong."

    Posted by: Hansel Currywurst | Jan 7, 2014 9:26:16 PM

  16. If you ask 10 different lawyers for their opinions on this issue, you will get 20 different answers. The "legal blogs" are already full of analysis and views on it.

    However, one point that seems to have been lost, and that (unfortunately) may not be good: the Utah laws not only banned entering into a same-sex marriage, but it also banned recognition of any same-sex marriage. So, one possible outcome is that the marriages that were performed after Judge Shelby's decision and before the Supreme Court stay are valid marriages (because they were legal when performed), that Utah must recognize them as valid for all purposes during the period before the Supreme Court stay, BUT that after the Supreme Court stay Utah can now refuse to recognize them as valid for the period after the stay (unless the 10th Circuit upholds Judge Shelby, etc).

    In other words, there is a difference between the right to enter into the marriage VS. the right to have the marriage recognized. The Utah law that prohibited entering into the marriages AND recognition of any same-sex marriages was "not in effect" for a while -- but now the law is in effect; so no more marriages can be entered into in Utah, but also all same-sex marriages -- whether entered into in Utah or any other state -- do not have to be recognized at this point. An example: couple was legally married in California and moves to Utah; Utah's laws don't seem to say that this couple was never legally married in California, but rather that their marriage won't be recognized in Utah.

    I hope this won't be the result, but it's very possible it will be.

    As for the federal government, that's a very different question because the feds will RECOGNIZE a marriage for federal law purposes as valid as long as it was entered into in a state where it such marriage was legal at the time it was performed. And the Utah marriages were valid in Utah at the time they were performed (due to the absence of a stay), so very possible the feds will say these continue to be valid marriages for federal law purposes regardless of whether Utah needs to recognize them for state law purposes.

    Very complicated will be months before this issue gets resolved.

    Posted by: MiddleoftheRoader | Jan 7, 2014 9:55:10 PM

  17. First, as already noted, there is the Prop-8 decision that validated the marriages prior to Prop-8.

    Furthermore, there's UTAH precedent! When polygamy was outlawed, polygamous marriages performed previously were still valid.

    Posted by: Gay Guy | Jan 7, 2014 11:32:10 PM

  18. I place this squarely on the shoulders of Sotomayor. She could have ruled on this, but passed it along to the full court where the stay was put in place. Around a week ago she also acquiesced to religious groups -- nuns, specifically -- and delayed the birth control portion of Obamacare.

    She is proving quite a disappointment when it comes to parsing religious superstition from civil law. Shame on her.

    Posted by: Steve | Jan 8, 2014 12:18:41 AM

  19. Smart couples who got married during the window of opportunity in 2013 should now immediately file joint income taxes for that calendar year and have the federal government recognize them as spouses.

    Posted by: Lexis | Jan 8, 2014 1:15:48 AM

  20. Here's the thing about Sotomayor. If she had refused the stay,all Utah had to do after that was go to a different judge like Scalia or Alito who would have no doubt refered it to the entire court.
    So I won't rip her apart on this one,there was no way it wasn't going to go to the whole court.

    Posted by: Kevin | Jan 8, 2014 1:35:57 AM

  21. @ Steve,

    While Justice SortaMajor might be a disappointment to you, me or anybody else, she could well have been trying to get a peak inside of one specific mind. First, how stays from the Supremes work:

    1. J SS had 3 options: grant the stay, deny the stay, punt it to the full court. If she'd granted the say, I'd agree with you completely.

    2. But if she denied the stay, Utah could have approached any other justice. Think Scalia would have denied a stay? Yes, the Supremes have a tradition of not mucking in each other's Circuit, but it isn't a hard and fast "rule" that they can't. In fact, the rule specifies that on a denial, another justice "may" grant.

    3. By tossing to the full court, it takes FIVE justices to grant, not one. So, in that way alone, the odds were better for a stay NOT to be granted because Justice Tony would have been happy to grant if she denied. However, I'll bet she was also thinking, "if I put this to the full Court and Kennedy votes to deny, well that will tell us what he thinks about this.

    The justices might know what the vote was. We don't. There wasn't a dissent so it could have been 9-0 for all we know. Votes aren't published on stays.

    Yes, she granted a stay to nuns. It cheesed me off too. On the other hand, I'm looking forward to the Satanist's statue on the grounds of the capitol in OKC. First I'm looking forward to the court case[s] on the 10 Commandments monument there and then the Satanist's statue fight.

    Posted by: ben~andy | Jan 8, 2014 1:55:43 AM

  22. There are too many catholic justices of all political bents on the Supreme court. Six of the nine are catholic: Scalia, Kennedy,Thomas, Roberts, Alito, Sotomayor. The other 3 are Jewish. There should not be another catholic appointed to the supreme court until it is more balanced. Especially since so many issues before the court now are about or concerning catholic issues that conflict with values held by other Americans. I have nothing against Catholics but they are too well represented on the court.

    Posted by: Liam | Jan 8, 2014 1:48:05 PM

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