Two weeks ago Utah asked the Supreme Court to stay a decision allowing same-sex marriages in the state, warning that those couples would be harmed by the dissolution of their marriages if Utah won their case. On Wednesday, following the Supreme Court’s decision to grant a stay, Utah’s governor announced that the estimated 1,300 same-sex marriages that occurred after a federal court overturned the state’s same-sex marriage ban no longer count.
“With the district court injunction now stayed, the original laws governing marriage in Utah return to effect pending final resolution by the courts,” wrote Derek Miller, chief of staff to Utah Gov. Gary Herbert in an email to the cabinet. “It is important to understand that those laws include not only a prohibition of performing same-sex marriages but also recognizing same-sex marriages.”
Peggy Tomsic, one of the attorneys for the three same-sex couples who sought to overturn Utah’s ban on same-sex marriage, released a statement calling the action “unwarranted” and said that “regardless of how the state believes the Tenth Circuit will ultimately rule, these couples are legally married, and the State should treat them accordingly.”
Utah is one of the most conservatives states in the union. While a majority of Americans support same-sex marriage rights, a 2012 survey found only 36% of Utah residents did, though that number is up from 24% in 2004.
“These couples are as married as any couples on the planet, and it’s shameful for the governor to try and set asunder what their love and the law have created, a legal marriage,” said Evan Wolfson, president of Freedom to Marry, a group that supports same-sex marriage. “The governor is playing politics.”
A federal judge ruled in December that Utah’s ban on same-sex marriages violated the Constitution, sending same-sex couples streaming into clerk’s offices in the state seeking to get married. Shortly thereafter, a higher federal court denied the state’s application for a stay of the decision, prompting Utah to request a stay from the Supreme Court while litigation continues. The Supreme Court granted the state’s request, temporarily putting off a final decision on the constitutionality of same-sex marriage bans.
As far as the state is now concerned, none of the happy, smiling couples seen lining up to get marriage licenses in the days following the December decision are actually married anymore. State services contingent on marriage, will not be available to those couples.
“I think the governor and attorney general would be wise to reconsider their decision,” said John Mejia of the ACLU of Utah. “For the government to refuse to recognize those is an affront to those couples due process rights under the state constitution and the federal constitution.”
Mejia said the ACLU would seek to persuade the governor and attorney general to change their mind, and failing that, would consider their options as far as litigation.
The circumstances facing Utah are sufficiently rare that there are few prior precedents for how to handle same-sex couples who are married after a same-sex marriage ban is overturned but before the issue is settled in the courts or at the ballot box. In New Mexico and California, courts ultimately ruled that those marriages had to be recognized by the state. The fact that the law is unclear however, doesn’t mean that Utah’s decision was necessary.
“I don’t think it’s a foregone conclusion that they had to do this, they could have said while the litigation was pending, anyone who got married before the stay was issued is still considered married,” said Samuel Bagenstos, a professor at the University of Michigan Law School. “The fact that they didn’t is as much about their choice about how to interpret state law and the stay from the Supreme Court as what was required.”