The circumstances facing Utah are sufficiently rare that there are few prior precedents for how to handle same-sex couples who are married after a same-sex marriage ban is overturned but before the issue is settled in the courts or at the ballot box. In New Mexico and California, courts ultimately ruled that those marriages had to be recognized by the state. The fact that the law is unclear however, doesn’t mean that Utah’s decision was necessary.
“I don’t think it’s a foregone conclusion that they had to do this, they could have said while the litigation was pending, anyone who got married before the stay was issued is still considered married,” said Samuel Bagenstos, a professor at the University of Michigan Law School. “The fact that they didn’t is as much about their choice about how to interpret state law and the stay from the Supreme Court as what was required.”
Timothy Kincaid’s analysis:
In addition to being awkward and placing same-sex couples in extreme legal confusion, this may have been a strategic misstep on the part of the state.
It places Utah in the position of treating people in exactly the same situation (same-sex couples married under Federal authority) in disparate ways. The second problem with the Attorney General’s decision is that in many ways this closely mirrors the Proposition 8 scenario. In Hollingsworth v Perry, the Ninth Circuit found that you cannot grant rights to a group of people and then take those rights away. Here the state granted specific rights to married same-sex couples and then swooped in and took those specific rights away. And while the Ninth Circuit decision does not create precedent in the Tenth Circuit, it nevertheless will be given consideration. Had Utah simply said, “if you got married, you are married; if you didn’t, you are not”, that would have been a clean and simple ruling. But by taking a “we will not give you one iota of protection that we haven’t already processed” stance, the state demonstrates a significant degree of hostility. And by doing so, they have strengthened both our argument that the banning of same-sex marriage is rooted in animus and our call for heightened scrutiny in legal decisions.
Ari Ezra Waldman weighs in:
The state may not want to recognize the marriages performed in Judge Shelby’s equality window, but the federal government should. The federal government, according to instructions from agencies like the IRS and the Office of Personnel Management, will recognize marriages performed in the states as long as those marriages were performed in a state that recognized those marriages. That is the “state of celebration” rule. Utah recognized the validity of same-sex marriages when the 1300 marriages were performed. And nothing has changed. The stay granted by the Supreme Court did not invalidate those marriages. Nor did it undo Judge Shelby’s decision, despite what some commentators have suggested. Governor Herbert’s decision to put the marriages “on hold” does not deny their validity, either. Everything is just on hold. And that doesn’t change the fact that the marriages were valid in Utah when they were performed. That’s the end of the story.
Earlier Dish on Utah’s marriages here.