January 6, 2014 at 4:29 pm EDT | by Chris Johnson
Will Utah same-sex marriages be deemed invalid?
Seth Anderson, Michael Ferguson, gay marriage, same-sex marriage, marriage equality, Utah, Salt Lake City, gay news, Washington Blade

Michael Ferguson and Seth Anderson were among the gay couples that married in Utah before the stay was put in place. (File photo courtesy Seth Anderson)

The U.S. Supreme Court’s decision to halt same-sex marriages in Utah is raising questions about whether gay marriages already conducted in the state will be considered valid.

Doug NeJaime, a law professor at University of California, Irvine, predicted the issue may lead to its own litigation outside of the pending lawsuit, Kitchen v. Herbert, that enabled the same-sex marriages in the first place.

“I’m guessing that question will spawn its own litigation,” NeJaime said. “Clearly, Utah does not want to recognize those couples as married.”

On Monday, the Supreme Court issued a stay on same-sex marriages in Utah in the wake of U.S. District Judge Robert Shelby’s decision on Dec. 20 instituting marriage equality in the state. State officials — Utah Gov. Gary Herbert and Attorney General Sean Reyes — last week requested a stay from the high court on the basis that the marriages were an “affront” to the democratic process.

Now that the stay is in place, the attorney general’s office itself has expressed uncertainty about whether the marriages performed in the state will be considered valid. In a statement, Reyes cited a lack of precedent on the issue.

“This is the uncertainty that we were trying to avoid by asking the District court for a stay immediately after its decision,” Reyes said. “It is very unfortunate that so many Utah citizens have been put into this legal limbo. Utah’s Office of Attorney General is carefully evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally.”

Although Reyes maintains he won’t rush into a decision, pressure will be on the state to decide soon. Now that 2014 has begun, gay couples that recently married in Utah will be filing their taxes and will need to know whether they qualify as married or single.

One common prediction is the marriages will be deemed invalid similar to how the California Supreme Court invalidated the marriages then-San Francisco Mayor Gavin Newsom allowed with the state’s ban on same-sex marriage in place. But the situations are different. The marriages at that time were happening as a result of executive action, not a court order.

The American Civil Liberties Union, which was responsible for the lawsuit bringing down Section 3 of the Defense of Marriage Act, took to Twitter to encourage Utah to uphold the marriages as valid.


A possible scenario is that Utah itself won’t recognize the same-sex marriages performed in the state, but the federal government would deem those unions valid for federal benefits. Under that scenario, these couples would be considered married for tax purposes as well as for health and pension benefits if either person in the marriage works for the U.S. military or federal government.

A White House spokesperson deferred to the Justice Department on whether the federal government would recognize these marriages as valid. Dena Iverson, a Justice Department spokesperson, said, “We are reviewing the court’s decision.”

Shannon Minter, legal director for the National Center for Lesbian Rights, said it’s possible Utah may not recognize same-sex marriages pending appeal of the case, but maintained the federal government should accept the unions as legitimate.

“The federal government should recognize them for most purposes because federal recognition for almost all federal benefits hinges only on whether a marriage was valid when entered,” Minter said.

The final number of same-sex marriages performed in Utah before the Supreme Court put in place its stay isn’t yet known. According to a Dec. 27 report in the Associated Press, Utah issued 900 marriage licenses to gay couples in the week after a federal judge struck down the state’s ban on same-sex marriage.

Suzanne Goldberg, co-director for Columbia University’s Center for Gender & Sexuality Law, insisted that these marriages should be considered valid even with the stay in place.

“It is unlikely that the marriages already performed in Utah will be invalidated,” Goldberg said. “Those marriages were performed in accordance with Utah law and a later change in the law, if there is one, should not undo them.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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