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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 | LINK

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

January 8th, 2014 | LINK

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 | LINK

Very interesting analysis Timothy.

Ben in Oakland
January 8th, 2014 | LINK

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 | LINK

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 | LINK

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 | LINK

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 | LINK

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

January 9th, 2014 | LINK

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 | LINK

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

spell checker
January 9th, 2014 | LINK


Timothy Kincaid
January 9th, 2014 | LINK

thanks spell checker. fixed

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