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ACLU files opposition in Evans case; state says it will comply with law

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SALT LAKE CITY — The governor's office says the state will comply with the law if the U.S. Supreme Court doesn't stay a lower court ruling calling for recognition of same-sex marriages performed in Utah.

Utah would have to grant marital benefits to about 1,300 couples starting Monday unless the high court steps in.

"We're prepared, ultimately if that is the outcome, to instruct state agencies to follow the law. That's consistent with what the governor has said in the past," said Gov. Gary Herbert's spokesman, Marty Carpenter.

But, Carpenter added, Herbert believes the best course of action is for the Supreme Court to extend the stay until the question over same-sex marriage is settled.

The state sent an emergency request Wednesday to Justice Sonia Sotomayor, who oversees the six states, including Utah, in the 10th Circuit Court of Appeals. Attorneys for the couples who sued the state to have their marriages recognized filed a repsonse late Thursday. Sotomayor could issue an order Friday.

In the response, lawyer Joshua Block says there is no such thing as "interim marriage" as the state argued in its filing.

"In seeking to nullify marriages that were legal at the time they were solemnized, defendants seek to do something that is unprecedented in our nation's history," he wrote.

The 10th Circuit ruled last week that Utah failed to prove the need to stay a lower court decision forcing it to validate the marriages. A three-judge panel allowed a temporary stay to continue for 10 days so the state could appeal to the Supreme Court. That temporary stay expires Monday at 8 a.m.

Should the Supreme Court not extend the stay, the state Division of Motor Vehicles, the Utah Department of Health and other agencies could see a rush of couples looking to change names on drivers' licenses or to amend children's birth certificates. Courts also could see parents filing new adoption petitions.

"We do expect a sense of urgency from these couples. They'll want to seek benefits right away," said Deann Armes, Utah Pride Center spokeswoman.

Married same-sex couples say they and their families are in legal limbo regarding adoptions, child care and custody, medical decisions, employment and health benefits, future tax implications, inheritance, and many other property and fundamental rights associated with marriage.

"With the kind of uncertainty that they've been living with through this whole process, as soon as you have the ability to seek these privileges, they're not going to waste any time," Armes said.

Carpenter said the state doesn't intend to reprint various government forms until "we have an actual decision" and that there could be lag time in some areas.

"I don't know that it's as easy as flipping a switch," he said.

The governor's office told state agencies in January to put recognition of same-sex marriages performed in the state during the brief time it was legal on hold pending the state's appeal.

JoNell Evans and Stacia Ireland, Donald Johnson and Carl Fritz Shultz, Matthew Barraza and Tony Milner, and Elenor Heyborne and Marina Gomberg sued the state to have their marriages recognized. All were married in Utah between Dec. 20, 2013, and Jan. 6.

The marriage recognition case, Evans v. Utah, is separate from the original federal case, Kitchen v. Herbert, challenging the state's voter-approved gay marriage ban that defines marriage as between one man and one woman.

Utah contends a stay is called for because of the close connection between the two cases. Until the Kitchen case is resolved, requiring the state to recognize the marriages and provide marital benefits is premature and unwarranted, according to the state.

Utah argued the unions would be void if the same-sex marriage is found unconstitutional.

"How will the state and plaintiffs address the problems such a scenario would create?" Gene Schaerr, the state's lead attorney in same-sex marriage cases, wrote, adding neither should be subjected to that possibility.

Block argued that the marriages must be recognized whether Kitchen is ultimately affirmed or reversed.

"If any uncertainty exists, it is the product of defendants' unlawful attempt to put these marriages 'on hold' and continued attempts to seek emergency stays to avoid complying with federal and state court orders rejecting their legal arguments," he wrote.

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Dennis Romboy


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