Utah’s rather odd ruling about married couples

Timothy Kincaid

January 8th, 2014

On December 20, 2013, Judge Richard Shelby determined that the anti-gay marriage laws of the State of Utah were in violation of the equal protections clause of the United States Constitution. And, as Shelby refused to grant a stay, same-sex marriages began immediately.

The state requested that the Tenth Circuit Court of Appeals grant a stay, and their request was denied. Finally, a request to the US Supreme Court resulted in a stay of Shelby’s ruling, but about 1,000 same-sex couples had married by the time that county clerks were instructed to deny new applicants for marriage licenses.

Now the state has issued instructions on how state services are to treat the married couples. It is a most inelegant decision:

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. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.

Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.

In addition to being awkward and placing same-sex couples in extreme legal confusion, this may have been a strategic misstep on the part of the state. It places Utah in the position of treating people in exactly the same situation (same-sex couples married under Federal authority) in disparate ways.

The second problem with the Attorney General’s decision is that in many ways this closely mirrors the Proposition 8 scenario. In Hollingsworth v Perry, the Ninth Circuit found that you cannot grant rights to a group of people and then take those rights away. Here the state granted specific rights to married same-sex couples and then swooped in and took those specific rights away. And while the Ninth Circuit decision does not create precedent in the Tenth Circuit, it nevertheless will be given consideration.

Had Utah simply said, “if you got married, you are married; if you didn’t, you are not”, that would have been a clean and simple ruling. But by taking a “we will not give you one iota of protection that we haven’t already processed” stance, the state demonstrates a significant degree of hostility. And by doing so, they have strengthened both our argument that the banning of same-sex marriage is rooted in animus and our call for heightened scrutiny in legal decisions.

Michael Smith

January 8th, 2014

I’ll never understand the we-will-not-recognize-the-relationships-which-exist mentality.


January 8th, 2014

Even if (and I think that is a pretty big ‘if’) the upper courts ultimately let Utah’s discriminatory amendment stand, they will likely still require the state recognize the federally-ordered marriages that have occurred. Heck, the state Supreme Court might even issue such an order, just as the California SC did after the passage of Prop8. Either way, this is a spiteful act that is indeed meant “to comment on the legal status of those same-sex marriages.” I hope these married couples will challenge this decision.

Finally, I wonder if this isn’t also a “we told you so” from the state to the 10th circuit. As I recall, they were so very concerned about what would happen to those poor homosexuals that got married while the ruling went un-stayed, lest that ruling get overturned and they suffer the ignominy of being put back in their second-class status (which was totally not second-class while the state was defending their law). So, the state argued that this potential harm should justify a stay. So maybe the state is saying, “See, they were hurt. Now won’t you believe our arguments?”

Priya Lynn

January 8th, 2014

Very interesting analysis Timothy.

Ben in Oakland

January 8th, 2014

I think, or at east deeply hope, that they have planted a foot in their own collective backside with this one. As i wrote elsewhere, since those marriages were legally valid when performed, and the state admitted they were legally valid, and no court has ruled otherwise, it might not be so simple. I smell a whole new slew of lawsuits.

I truly hope this was a grave misstep, which will come back and bite them VERY hard on their tightly clenched asses.

Drew Kennedy

January 8th, 2014

It’s such a blatantly foolish move that it almost makes me wonder if it wasn’t done on purpose to ‘help’ the SC (or 10th Circuit) in deciding to uphold Shelby’s decision.


January 8th, 2014

I would hope that this vindictive action by the UT government would lead to a couple hundred law suits by the couples that got married. This is clearly about making a political point. You have to just love UT the state that is pretty much a theocracy in all but name.


January 9th, 2014

The Donovan song plays in the background when I read stories like this.

“First there is a mountain, then there is no mountain, then there is”

Funny how another line keeps happening – not a coincidence.

“Caterpillar sheds his skin to find a butterfly within”


January 9th, 2014

Nathaniel, I think you hit it with your second paragraph.


January 9th, 2014

Sounds like the state is pulling a Chris Christie. They’re just getting revenge the only way they know how – by hurting their own voters.


January 9th, 2014

This brings to mind the recent Ohio case & the right to remain married.

spell checker

January 9th, 2014


Timothy Kincaid

January 9th, 2014

thanks spell checker. fixed

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.


Latest Posts

The Things You Learn from the Internet

"The Intel On This Wasn't 100 Percent"

From Fake News To Real Bullets: This Is The New Normal

NC Gov McCrory Throws In The Towel

Colorado Store Manager Verbally Attacks "Faggot That Voted For Hillary" In Front of 4-Year-Old Son

Associated Press Updates "Alt-Right" Usage Guide

A Challenge for Blue Bubble Democrats

Baptist Churches in Dallas, Austin Expelled Over LGBT-Affirming Stance

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.