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ACLU to sue Utah for not recognizing gay marriages

(Tom Smart, Deseret News, File)

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SALT LAKE CITY — Four same-sex couples married in Utah between the time that a federal judge struck down the state's ban on gay marriage and when the U.S. Supreme Court stayed that ruling are suing to have their marriages recognized.

The lawsuit was filed against Utah Gov. Gary Herbert and Attorney General Sean Reyes in 3rd District Court Tuesday by the American Civil Liberties Union of Utah and law firm Strindberg and Scholnick, which represents couples Donald Johnson and Carl Fritz Shultz, Matthew Barraza and Tony Milner, JoNell Evans and Stacia Ireland, and Elenor Heyborne and Marina Gomberg.

All four couples were married between Dec. 20 — when U.S. District Court Judge Robert Shelby declared Utah's Amendment 3, Utah's voter-approved definition of marriage as between a man and a woman, unconstitutional — and when the U.S. Supreme Court stayed Shelby's ruling on Jan. 6.

"Although each of these couples have entered valid Utah marriages performed … (with) valid Utah marriage licenses, the state has announced that it has placed recognition of their marriages on hold indefinitely," ACLU of Utah's legal director, John Mejia, said.

"We brought this lawsuit because these couples, and what we estimate are more than 1,000 other same-sex couples, were legally married under Utah law. We ask the court to make clear an order that these unions must be treated the same as any other Utah marriage."

Once the stay was issued, a governor's office directive told state officials to put recognition of the marriages on hold and instructed each department to consider what changes are required. Since that time, the Utah State Tax Commission said same-sex couples eligible to file a joint federal income tax return can also file joint state returns in Utah.

The lawsuit argues that the governor's directive has left the same-sex couples who were married in legal limbo and unable to access "critical protections for themselves and their children."

I don't think the governor has much choice but to say: 'I'm bound by the law. He doesn't have a choice but to say, 'That's the interpretation. We're going to see down the road what happens.'

–Bill Duncan, an attorney and Director for Family and Society at the Sutherland Institute

Bill Duncan, an attorney and Director for Family and Society at the Sutherland Institute, said he doesn't see what else Herbert should have done. He argued that a stay meant Amendment 3, which prohibits the recognition of marriages that aren't between a man and woman, was reinstated.

"I don't think the governor has much choice but to say: 'I'm bound by the law,'" Duncan said. "He doesn't have a choice but to say, 'That's the interpretation. We're going to see down the road what happens.' "

Herbert's spokesman, Marty Carpenter, reiterated this in a statement issued Tuesday.

"Governor Herbert has said throughout this process that his responsibility is to follow the law," Carpenter said. "That is exactly what the administration is doing, and we respect the rights of those who disagree to take their grievances before a judge."

Each of the couples represented in the suit spoke at a news conference Tuesday. Milner said he and Barraza have been together for 11 years.

They had a commitment ceremony in 2007 and traveled to Washington, D.C., to be married in 2010. But it wasn't until Dec. 20, when they wed again at the Holladay United Church of Christ, that their marriage was considered legal and lawful in the state they call home.

"We were thrilled," Milner said. "Most importantly, though, we were excited to move forward with the second-parent adoption of our son."

In 2009, the couple adopted Jesse, now 4, but only Barraza was able to legally adopt the child. On Dec. 26, they initiated adoption proceedings to allow Milner to also adopt the boy and a hearing was set for Jan. 10.

The court called on Jan. 9 to inform them that the stay issued on Shelby's ruling and directions from Herbert and Reyes to state agencies to not recognize same-sex marriage led them to give notice to the Attorney General's Office so that they could intervene. The couple asked for a continuance and said they want to wait until the adoption can proceed without state interference.

The lawsuit asserts a deprivation of the couples' constitutional rights of property and liberty interests and requests a declaratory judgment finding that the same-sex marriages are valid and that the reimplementation of Amendment 3 doesn't mean the rights can be retroactively stripped. They are also seeking an injunction and order that would direct state officials to recognize the marriages.

The case has been assigned to Judge Barry Lawrence.


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