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Federal judge orders recognition of same-sex marriages performed in Utah
May 19, 2014

SALT LAKE CITY — A federal judge ruled Monday that Utah must recognize the same-sex marriages performed in the state during the brief time it was legal in late December and early January.

U.S. District Judge Dale Kimball also put his order on hold for 21 days to allow the state time to seek an emergency stay from the 10th Circuit Court of Appeals in Denver.

Kimball wrote it's clear under Utah law that legal marriages can't be retroactively invalidated and that the state failed to show it would be harmed if the unions were recognized. Conversely, he said, not recognizing same-sex married couples disrupts their lives on a daily basis.

"The state has placed plaintiffs and their families in a state of legal limbo with respect to 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," Kimball wrote in his 34-page ruling.

"These legal uncertainties and lost rights cause harm each day that the marriage is not recognized."

Utah Attorney General Sean Reyes issued a statement Monday saying his office has not decided whether to appeal Kimball's ruling.

"According to the court, this decision directly relates to the same-sex marriages that took place within the 17-day window and not the ultimate legal questions in Kitchen vs. Herbert. We are currently assessing the legal impact of today’s decision and will respond within the 21-day allotted time period."

Kitchen vs. Herbert is the case that led to U.S. District Judge Robert Shelby overturning Utah's ban on same-sex marriage. It now rests with the 10th Circuit Court of Appeals, and a decision is expected in the coming weeks.

The preliminary injunction issued Monday is not a permanent order, but it reflects the court’s determination that the plaintiffs are likely to win on their legal claims and would suffer irreparable harm if their marriages were stripped of recognition.

John Mejia, an American Civil Liberties Union of Utah attorney who represents the couples, said the ruling means those marriages now cannot be taken away from them.

“While we await a permanent decision, we are relieved that our clients will receive the full recognition they deserve as lawfully married couples," he said.

Bill Duncan, Sutherland Institute director of the Center for Family and Society, called Kimball's ruling disappointing because it rewards Shelby's "overreaching" decision that struck down Utah's voter-approved Amendment 3 defining marriage as between a man and a woman.

"It's gamesmanship by a federal judge," Duncan said of Shelby's ruling.

"There's nothing in the United States Constitution that allows courts to mandate same-sex marriage on the states, but one judge was able to do just that by issuing a novel ruling and then forcing the state to put it into effect before the court of appeals could correct any legal errors in that decision."

After Shelby overturned Utah's same-sex marriage ban on Dec. 20, the state appealed to the 10th Circuit Court and obtained a stay of the ruling from the U.S. Supreme Court. About 1,300 couples married before the high court stepped in Jan. 6.

Reyes took the position that the Supreme Court stay means the law reverts back to the way it was before Shelby's ruling. Based on Reyes' advice, the governor's office directed state agencies on Jan. 8 to put recognition of same-sex marriages on hold pending the appeal.

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

In the lawsuit, the couples asked Kimball to order the state to immediately recognize the marriages.

"In this case, plaintiffs solemnized legally valid marriages under Utah law as it existed at the time of such solemnization. At that time, the state granted plaintiffs all the substantive due process and liberty protections of any other marriage," the judge wrote in the decision.

Kimball wrote that the state can't now undo those marriages, regardless of Amendment 3.

State Sen. Jim Dabakis, Utah's only openly gay legislator who married his longtime partner Dec. 20, praised the decision.

"As the only member of the Utah Senate whose spouse is refused state health care benefits, resulting from Gov. Herbert's order putting all legal, same-sex Utah marriages 'on hold,' I applaud Judge Kimball's decision," he said in a statement.

The Salt Lake Democrat also urged the governor to withdraw the hold affecting dozens of state employees, as well as hundreds of other married Utah couples.

Duncan said Kimball's ruling is wrongly premised on the idea that the law changed when Shelby declined to stay his own ruling in December.

"The Constitution didn't change for 17 days to require same-sex marriage while the state was waiting for a stay. It either required that or it didn't. We don't have a final answer on that question. It's not unreasonable for the state to say we're waiting to see what the law requires of us," he said.

Lawyers for the couples argued in court in March that the state's move to undo the marriages deprives them of rights, strips them of dignity and leaves them humiliated.

"The fact is these people are legally married," attorney Erik Strindberg said during the hearing.

Assistant attorney general Joni Jones said in the hearing that the state is not trying to void the marriages but is withholding recognition until after the 10th Circuit rules on the state's appeal of Shelby's decision.

But Jones said the unions would be void if Shelby's ruling is overturned because it would be based on an "erroneous" law.

"There's no question this is an emotional issue. But the state is constantly trying to take a position to respect their rights and respect the legal process," she said.

In his ruling, Kimball also denied the plaintiffs' and the state's requests to allow the Utah Supreme Court to decide whether same-sex couples who married in Utah should receive the legal benefits of marriage.

The state's high court, however, could still weigh in on a same-sex adoption case that hinges on whether the parents' marriage is valid.

Kimberly and Amber Leary married and petitioned for an adoption during the time same-sex marriage was legal in Utah. They had spent three years planning for their daughter, who was born to Amber Leary and is now 18 months old.

Third District Judge Andrew Stone finalized the adoption on March 26, making them the legal parents of the child. But when the Learys asked the health department to amend the birth certificate with both their names, it refused on the advice of the attorney general's office.

Reyes asked the Utah Supreme Court to decide whether the state can abide the adoption decree and not run afoul of the state law banning same-sex marriage.

The state's high court intervened last Friday and asked both sides to prepare for written and oral arguments.

The various court rulings put same-sex parents on an emotional roller coaster, said Cliff Rosky, a University of Utah law professor and Equality Utah board member who speaks for the Learys.

"It's hard to imagine a more high-stakes question," he said. "The roller coaster is today we're married. Today we're your parents. Tomorrow we're not. The kids are on the roller coaster too, and it's not fun."