With Troy and Senator Jim Dubakis who also got married today. :) and my husband. I like how that sounds. pic.twitter.com/jFN3493H5i
— Seth Anderson (@jsethanderson) December 21, 2013
During this long journey through the judicial system, the same-sex couples who married while it was legal to do so in Utah will find their unions in a kind of netherworld. They are not suddenly divorced, but it’s not clear what will happen if they now try to obtain the kind of government benefits that married people normally receive. Can they file joint state tax returns? Can they obtain health-insurance benefits as spouses? Can they be treated as spouses when they seek to visit one another in the hospital? Further litigation on this question is possible. (After Proposition 8 ended California’s first, brief experiment with marriage equality, in 2008, that state’s Supreme Court upheld the legality of the same-sex weddings that took place while they were legal.)
Noah Feldman asks similar questions:
Right now in Utah, some people are in a marriage limbo. They have married since the district court ruling, and now their unions are recognized by the federal government, too (one presumes) under Windsor. If the state ban is reinstated, what then? They will be unmarried (maybe) under Utah law. Will they be federally unmarried, too? It’s not an abstract question, since they might not be able to get married in other states that recognize gay marriage since they aren’t residents of those states. In short, we may be facing citizens who are married in no state but are married federally.
Mike Dorf notes that “the Supreme Court could have–and should have–resolved this question with its order”:
It could have added a couple of lines specifying that these marriages either are or are not to be treated as valid in the interim. My own view is that, even if the Court was right to stay the judgment with respect to Utah same-sex couples who haven’t married yet, it should have said that the already-married 900+ couples should be treated as legally married pendente lite. After all, part of the rationale for staying the judgment is to avoid having couples marry but then be told that their marriages are invalid. That rationale doesn’t apply to the 900+ because declaring their marriages void pendente lite inflicts the very harm that a stay is meant to avoid. But even if the Court disagreed with me about that point, it could have said so expressly, rather than leaving Utah citizens and the state uncertain about the legal status of their marriages.
I don’t know why the Court didn’t expressly resolve this issue but I have a pretty good guess: I suspect that the Justices could not achieve unanimity on this point and so they compromised on an ambiguous ruling.