Utah AG Says Marriages Don't Count, Feds Say They Do

By Lisa Keen

Editor's note:

On Friday, U.S. Attorney General Eric Holder said the Federal Government will recognize same-sex marriages recently performed in Utah. Here is Holder's statement:

"Last June, the Supreme Court issued a landmark decision - in United States v. Windsor - holding that Americans in same-sex marriages are entitled to equal protection and equal treatment under the law. This ruling marked a historic step toward equality for all American families. And since the day it was handed down, the Department of Justice has been working tirelessly to implement it in both letter and spirit--moving to extend--federal benefits to married same-sex couples as swiftly and smoothly as possible.

Recently, an administrative step by the Court has cast doubt on same-sex marriages that have been performed in the state of Utah. And the governor has announced that the state will not recognize these marriages pending additional Court action.

In the meantime, I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages. These families should not be asked to endure uncertainty regarding their status as the litigation unfolds. In the days ahead, we will continue to coordinate across the federal government to ensure the timely provision of every federal benefit to which Utah couples and couples throughout the country are entitled - regardless of whether they are in same-sex or opposite-sex marriages. And we will continue to provide additional information as soon as it becomes available."

A video recording of the Attorney General delivering the above statement can be viewed at: http://www.justice.gov/video.php.

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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 December 20, 2013, and January 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, Governor 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.


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