The Utah Attorney General Sean Reyes issued a statement Wednesday afternoon saying that he was “unable to reach a legal conclusion as to the ultimate validity of marriage between persons of the same sex who completed their marriage ceremony in Utah between Dec. 20, 2013, and Jan. 6, 2014.”
“That question remains unanswered and the answer will depend on the result of the appeal process,” continued Reyes. He said any same-sex couple applying for some state marriage benefit or recognition would be evaluated on a “case-by-case basis” by a “review team” established just for that purpose.
Reyes stated that the U.S. Supreme Court’s grant of a stay against the federal district court decision that struck down Utah’s ban on marriage for same-sex couples “means that Utah’s laws defining marriage…are again in effect….”
The attorney general’s statement acknowledges that 1,300 same-sex couples have married in the two-and-a-half weeks since U.S. District Court Judge Robert Shelby issued his decision and immediately enjoined the state from enforcing its ban. The U.S. Supreme Court on Monday granted Utah’s stay against Shelby’s order.
Later, Gov. Gary Herbert’s office issued a statement, saying “Based on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide.”
“There is no reason for the state to destabilize these families,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which just Wednesday sought designation from the Tenth Circuit U.S. Court of Appeals to serve as co-counsel for same-sex couples on the state’s appeal of Shelby’s decision in Kitchen v. Herbert.
“These couples are legally married, the state has been providing them with marital rights and protections, and it should continue to do so. There is no need for this kind of case-by-case review, and putting married couples and their families through this process is humiliating and will subject them to needless uncertainty and legal vulnerability.”
Jon Davidson, legal director for Lambda Legal which has a number of marriage equality lawsuits in the works, including one in the Ninth Circuit, said he believes “couples who married prior to the stay remain married.”
“They validly married pursuant to the law at the time they married, given that a court order allowed them to marry then,” said Davidson. But, he added, with the injunction against enforcement of the ban now stayed by the U.S. Supreme Court, “there is no court order preventing what the AG is suggesting be done.”
“Any couple whose marriage is denied recognition by the state would have a claim that refusing to honor their marriage violates their constitutional rights, however, and I believe it would be a strong claim, given the vested property rights and reliance interest that couples who lawfully marry in a state have that their marriage will be respected,” said Davidson. “Accordingly, if the state does refuse to honor their marriage, it may be facing additional litigation.”
Human Rights Campaign President Chad Griffin said Attorney General Reyes’ action “harms hundreds of Utah families and denies them the respect and basic protections that they deserve as legally married couples.”
A private law firm, Magleby & Greenwood, is representing same-sex couples who initiated the Kitchen v. Herbert lawsuit in Utah.