Michelle Tessier/Deseret News

Same-sex marriage legal in Utah after Supreme Court rejects case

By Dennis Romboy  |  Posted Oct 6th, 2014 @ 10:49pm


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SALT LAKE CITY — Same-sex marriage became legal in Utah after the U.S. Supreme Court declined Monday to hear the state's appeal of a lower court ruling allowing gays and lesbians to marry.

Within hours of the decision, the 10th Circuit Court of Appeals lifted the stay on gay marriage in Utah and five other states in its jurisdiction. County clerks in Utah started issuing marriage licenses to same-sex couples and overseeing weddings.

Meantime, Gov. Gary Herbert and Attorney General Sean Reyes acknowledged the cultural and legal shift in Utah and the need to uphold the law.

"This is historical. This is groundbreaking. This of great significance to our culture and to the laws of the land. It's different than what we've had for the last 227 years," the governor said. "We don't know all the questions let alone the answers, but that's going to be part of the process of coming together and working together for the good of the whole."

Herbert's comments came in reaction to the Supreme Court's decision to deny petitions from Utah, Oklahoma, Indiana, Virginia and Wisconsin. Each of those states argued that their cases were the best vehicles for the justices to decide the same-sex marriage question nationwide once and for all.

The court did not state a reason for rejecting the cases. Last month, Justice Ruth Bader Ginsburg said it might not take on the issue at this point because there was no disagreement among the lower courts.

The 10th Circuit Court lifted the hold it had placed on same-sex marriages in Utah Oklahoma, Colorado, Wyoming and Kansas shortly after the high court's denial. The other state in the 10th Circuit, New Mexico, has allowed same-sex marriage since December 2013.

Utah makes changes to abide by law

Salt Lake County District Attorney Sim Gill promptly advised Salt Lake County Clerk Sherrie Swensen that she could issue marriage licenses to same-sex couples, and couples began showing up at the courthouse. Other counties followed suit.

"We are thrilled with the decision today. We were caught off guard. We weren't expecting a decision so soon from the Supreme Court," said Derek Kitchen, one of six plaintiffs in the case that bears his name.

"We can't wait to plan our wedding," he said as his partner, Moudy Sbeity, stood behind him with a hand on his shoulder. "We're going to have big, gay, farmer's market wedding."

Utah Gov. Gary Herbert and Attorney General Sean Reyes speak Monday, Oct. 6, 2014, to members of the media at the state Capitol after the U.S. Supreme Court refused to hear appeals on lower court rulings that allowed same-sex marriages, making them legal in Utah and other states.

Herbert and Reyes said at a news conference that the state would abide by the law. The governor advised state agencies in a letter to immediately recognize legally performed same-sex marriages.

Still, Herbert said he was surprised and disappointed that the Supreme Court did not take up the issue. He also reiterated his position that states should decide their own marriage laws.

"While I continue to believe that the states do have the right to define marriage and create laws regarding marriage, ultimately we are a nation of laws and we here in Utah will uphold the law," the governor said.

Herbert called on Utahns to treat each other with kindness and respect regardless of their personal beliefs about same-sex marriage.

Reaction to court's decision

The Supreme Court decision appears to have ended the state's appeal in the same-sex marriage recognition case, Evans v. Utah, moot. Reyes' office is reviewing the impact on other cases, but he said he's inclined to believe that many of those issues are moot.

The 10th Circuit in June upheld U.S. District Judge Robert J. Shelby's ruling that struck down Utah's voter-approved 2004 law defining marriage as between a man and a woman. The courts held that marriage is a fundamental right under the 14th Amendment guarantee of equal protection under the law.

It was widely expected that the Supreme Court would take up at least one gay marriage case in its term that started Monday. Cases in other states continue to work their way through the court system, though it seems unlikely the high court would take one unless an appellate court sides with a state's gay marriage ban.

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Bill Duncan, Sutherland Institute’s director of the Center for Family and Society, said he was "deeply disappointed" that the high court failed to "correct the lawlessness" of lower courts that have deprived people in Utah and other states of their ability to protect their belief that children are entitled to be raised by a married mother and father.

"While it appears that Utah is being forced by the federal courts to recognize same-sex marriages, there are still other states whose laws the courts have not yet disrupted. We will provide whatever support we can to those states and hope the Supreme Court will reconsider this unwise action in a future case," Duncan said.

Alliance Defending Freedom senior counsel Byron Babione said the court’s decision not to take up the issue means that the marriage battle will continue.

Several federal courts — including those in the 5th, 6th, 8th, and 11th circuits — still have cases working their way to the Supreme Court, he said.

Peggy Tomsic, lead attorney for three gay and lesbian couples in the Utah case, said it would be hard for other courts to "put the toothpaste back in the tube."


For us, what this really means is families in Utah and the 10th Circuit finally have the dignity, the fairness and the equality that the Constitution guarantees to them and that we all fought so hard for.

–Peggy Tomsic, attorney


"From a constitutional perspective, it would be very difficult to say that some circuits can hold it constitutional under the 14th Amendment and others can say it's not. The 14th Amendment is the 14th Amendment. It applies to every state in this union," she said.

Tomsic, who married her partner after Shelby's ruling last December, became emotional talking about the Supreme Court decision. She said she looks forward to moving ahead with the second-parent adoption of her son.

"It's an incredible thing that we've done," she said. "For us, what this really means is families in Utah and the 10th Circuit finally have the dignity, the fairness and the equality that the Constitution guarantees to them and that we all fought so hard for."

Mary Summerhays, president of Celebration of Marriage, issued a statement saying the court has turned a blind eye to a child's need for both a father and mother.

"The credibility of the judicial system is permanently damaged when it concludes that adult relationships are so important that children must give up their relationships with their own mother or father when it comes into conflict with gay marriage," she said.

"Although the lower courts have been allowed to redefine marriage in Utah, Utahns who stand with children will continue to vigorously support policy that prioritizes children’s most important relationships above other considerations."

Legalized gay marriage likely here to stay

Utah's case, Kitchen v. Herbert, addressed both the right to marry and recognition of gay and lesbian marriages performed in other states. Unlike in some cases, the governor and attorney general continued to defend the state's marriage law.

The case proceeded rapidly since Kitchen and Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call challenged Utah's Amendment 3 in a federal lawsuit in March 2013. Archer and Call married in Iowa and claimed the law kept them from being treated as heterosexual couples because it does not recognize their marriage.

In December 2013, Shelby ruled that the law violates equal protection guarantees in the 14th Amendment.

The state appealed Shelby's decision to the Denver-based 10th Circuit Court of Appeals and obtained a stay from the Supreme Court, but not before about 1,300 same-sex couples married in the state. The 10th Circuit upheld Shelby's ruling in June.


I think the Supreme Court has decided to let the issue percolate a little more among the lower courts.

–Paul Cassell, U. law professor


"I was getting tired of saying we'd only been married for 17 days," Wood said referring to the period after Shelby's ruling. "I am really, really excited to move on."

Reyes said the state made strong arguments for the high court to hear the case and he doesn't regret the team Utah assembled to defend its marriage law. The state spent about $600,000 on the case, Herbert said.

But with Monday's decision, Reyes said, it's time for Utahns to come together and heal any rifts that have occurred.

"We are all Utahns and I hope that we will exercise a great deal of kindness, caring and understanding one towards each other," he said.

One legal expert says that the Supreme Court may hold off on weighing in on the legality gay marriage or might not weigh in at all.

"I think the Supreme Court has decided to let the issue percolate a little more among the lower courts. And maybe they’re thinking that the lower courts will never be divided, that they will all say that same-sex marriage is required by the Constitution," said Paul Cassell, University of Utah law professor and a former federal judge. "And if there's no conflict in the lower courts, there’s no reason for the Supreme Court to step in.”

It is always possible that a lower court may rule differently than the recent rulings, he said, but if not, there may be no reason for the Supreme Court to make a ruling.

“Today’s decision by the Supreme Court leaves in force five favorable marriage rulings reached in three federal appellate courts, ensuring the freedom to marry for millions more Americans around the country," Evan Wolfson, president and found of the advocacy group Freedom to Marry, said in a statement.

In total, 41 federal and state courts in the past year have ruled in favor of same-sex marriage with only one federal and one state ruling going the other way. A federal judge in Louisiana upheld that state's gay marriage ban. An appeal is pending before the 5th Circuit Court.

"The court’s letting stand these victories means that gay couples will soon share in the freedom to marry in 30 states, representing 60 percent of the American people," Wolfson said.

Contributing: Nkoyo Iyamba, Richard Piatt, Shara Park and Nicole Vowell

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