January 21, 2014 | by Chris Johnson
Gay couples sue Utah to recognize their marriages
Elenor Heyborne, Marina Gomberg, Matt Barazza, Tony Milner, ACLU, American Civil Liberties Union, gay news, Washington Blade

Elenor Heyborne (on left) and Marina Gomberg; Matt Barazza, Tony Milner (left) and Jesse (center) are suing Utah to recognize their marriages. (Photos courtesy of the American Civil Liberties Union)

For Matt Barazza, government recognition of his marriage in Utah is important not only to him and his spouse, Tony Milner, but also to the four-year-old child whom they’ve raised since his birth.

After marrying in their home state of Utah on Dec. 20 — the first day same-sex marriage came to Utah — the couple submitted paperwork for a second-parent adoption of the child, Jesse, and received a hearing date of Jan. 10. But plans changed after Gov. Gary Herbert announced the state wouldn’t recognize Utah same-sex marriages in the wake of a stay on the weddings from the U.S. Supreme Court.

As a consequence, the judge presiding over the request for second-parent adoption pushed back the hearing to Jan. 31, and Barazza and Milner elected to join a proposed lawsuit by the American Civil Liberties Union to ensure Utah would recognize the more than 1,300 gay weddings performed in the state.

“That’s the primary reason for us filing the lawsuit at this point was to have the Utah courts make a decision and recognize that our marriage is legal, so that we can go forward with the second-parent adoption and try and get the protections that we can for our son,” Barazza told the Washington Blade on Monday.

While Barazza, 38, an attorney, and Milner, 33, a director of a non-profit that serves homeless families, are both raising Jesse in Salt Lake City, only Barazza is recognized as the adoptive parent because under Utah law, only one of the two was able to adopt the child. The couple also legally married in D.C. in 2010, but elected to do so again when same-sex marriage came to Utah so they could wed in their home state.

But with their marriage no longer recognized by Utah, Barazza said he lives in constant fear of what might happen because of the lack of legal recognition between his partner and their son.

“You fear the worst case scenario always,” Barazza said. “As the one who’s the legal parent, if anything were to happen to me, it would leave [Jesse] basically an orphan as far as the law is concerned…All that would be in spite of my husband Tony being there from Day One and being just as much a parent as I am.”

On Dec. 20, U.S. District Judge Robert Shelby ruled that Amendment 3, Utah’s ban on same-sex marriage, was unconstitutional as a result of a federal lawsuit seeking marriage equality, allowing gay couples to wed in the state immediately. But upon the request from the state, the U.S. Supreme Court placed a stay on the weddings on Jan. 9 pending appeal of the lawsuit. The next day, Herbert said the state wouldn’t recognize the same-sex marriages of couples that married in Utah before the stay was in place.

Although U.S. Attorney General Eric Holder would later announce the marriages would be recognized for federal purposes, as it stands now the couples will have to wait for the outcome of the federal lawsuit — which could take years — to find out whether the state will recognize their marriage.

Barazza and Milner are one of four couples seeking recognition of their marriage from Utah after having wed in the 18 days when same-sex marriages were legal there. The lawsuit was filed Tuesday in state court by the American Civil Liberties Union, the ACLU of Utah and the Salt Lake City-based firm Strindberg & Scholnick, LLC.

The 32-page complaint alleges Herbert’s decision not to recognize the marriages violates both the due process clause under Utah’s  constitution and the Fourteenth Amendment to the U.S. Constitution. Additionally, it seeks relief under declaratory judgment and Rule 65B, which allows individuals in Utah to seek extraordinary relief against wrongful use of public authority.

“By placing recognition of their marriages ‘on hold,’ the State of Utah has placed the legal status of plaintiffs’ families, including their children, in legal limbo and created uncertainty as to their rights and status in virtually all areas of their lives,” the complaint states.

Joshua Block, a staff attorney with the ACLU’s LGBT project, said the goal of the lawsuit is to achieve a result similar to what the California Supreme Court decided after state voters in 2008 approved Proposition 8.

“What happened in Prop 8 is they said if you got married before the amendment went into effect, the marriages are valid and continue to be recognized in California, but no new marriages could happen,” Block said.

In addition to Barazza and Milner, the other plaintiff couples in the lawsuit are Marine Gomberg and Elenor Heyborne of Salt Lake City; JoNell Evans and Stacia Ireland of West Valley, Utah; and Donald Johnson and Fritz Schultz of Sandy, Utah.

After being together for nine years, Gomberg, 29, told the Blade she and Heyborne, 28, wanted to wed immediately on Dec. 20 upon learning that a court has instituted marriage equality in Utah. The couple held a commitment ceremony in 2009, but weren’t legally married until last month.

“There was a huge sense of immediacy because this was something we waited so long for, and we didn’t know how long the window would be,” Gomberg said.

Soon after, Heyborne, a state employee who works in communications, learned that Utah would no longer recognize their union and she sent a text message to Gomberg, who also works in communications, to inform her of the news.

“Obviously, this put all our hopes and dreams to have a kid on hold because the state of Utah doesn’t recognize same-sex adoption, so we would have to go out of state, establish residency somewhere, and then come back here,” Heyborne said. “When we got married, we kind of thought that that was a hoop we would not have to jump through now that we were legally married.”

Marty Carpenter, a Herbert spokesperson, said the governor is standing by his decision not to recognize the same-sex marriages performed in Utah.

“Gov. Herbert has said throughout this process that his responsibility is to follow the law,” Carpenter said. “That is exactly what the administration is doing and we respect the rights of those who disagree to take their grievances before a judge.”

Although state officials announced they’re not recognizing the marriage, the Utah Tax Commission issued guidance last week saying that same-sex couples married in 2013 can be recognized as such for tax purposes for that year if they filed federal returns as married.

Block said the new lawsuit is completely independent of the existing marriage equality lawsuit, known as Kitchen v. Herbert, which brought the same-sex marriages to the state and is pending before the U.S. Tenth Circuit Court of Appeals.

In the event that court or the U.S. Supreme Court rules that state bans on same-sex marriages like Amendment 3 are constitutional, Block said the outcome wouldn’t affect gay couples married in Utah if the new lawsuit succeeds because “they had vested rights that  can’t be taken away just like if Prop 8 had been upheld as constitutional.”

“But then, even if Kitchen is affirmed on appeal,” Block added, “and the marriage amendments need to stop being enforced again, that doesn’t really solve the problem of legal implications of what happens over the course of people’s lives of the course of this year and next year until the Kitchen litigation comes to an end.”

Block was unable to predict the length of time it would take for the new lawsuit to be resolved, but noted the case was filed before state district court and said he expected requests soon for summary judgment before the Utah Supreme Court.

Each of the plaintiff couples that spoke to the Blade was optimistic about the lawsuit moving forward. Barazza said he’s “really confident” the lawsuit will succeed based on growing public support for marriage equality.

“Public opinion is going in that direction, and I think the courts are recognizing that,” Barazza said. “Also, just with the fundamental fairness and equality as being recognized under the Constitution, I think that is where the country’s headed.”

Block was also optimistic because he said Utah has “a long history” of protecting vested rights under its constitution, such as when the court rebuffed the state legislature’s attempt to change a person’s right to sue under tort law.

“That’s very similar to your legal obligations and rights that come with a marriage license and recognition,” Block said. “Once you got married, you accrued vested rights and all the legal implications of that marriage. And under those principles, I think this right is more important than all the other vested rights that have been protected.”

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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