Although the Utah governor and attorney general attempted to clarify the situation for the couples on Wednesday, the questions — and, likely, lawsuits — are just beginning.
Same-sex couples, accompanied by their friends and family members, line up to get marriage licenses at the Salt Lake County Government Building in Salt Lake City, Utah, Dec. 23, 2013.
Jim Urquhart / Reuters
WASHINGTON — The fate of Utah's nearly 1,400 legally married same-sex couples is still unclear as the state challenges a ruling that overturned Utah's ban on marriage between same-sex couples.
It's been less than 20 days since U.S. District Court Judge Robert Shelby declared Utah's 2004 ban to be unconstitutional. The Supreme Court on Monday stopped Shelby's order from going into effect while Utah appeals the case to the 10th Circuit Court of Appeals; the state's first brief is due by Jan. 27.
Shelby's order had been in effect for two weeks, though, and now questions abound over the status of the same-sex couples who married in Utah while it was legal from Dec. 20, 2013, through Monday.
The Supreme Court action ended new marriages from taking place for the time being. But Utah Gov. Gary Herbert and Attorney General Sean Reyes on Wednesday went further, saying the 1,360 couples' marriages were "on hold," per a statement from Herbert's office, and would not be recognized by the state while the Supreme Court stay is in effect.
This is not an altogether surprising decision by the officials. Utah's marriage amendment does not only ban same-sex couples from marrying in the state; it also bans the state from recognizing such marriages. Because the Supreme Court stay effectively puts the marriage amendment back on the books, it prevents recognition of the very marriages the state granted over the past weeks.
Nonetheless, several questions remain unanswered and some have been made more confusing by the very statements of Herbert and Reyes.
Both officials made clear in their statements that they were not invalidating or nullifying the marriages at this time. Herbert's office, in a letter from his chief of staff, stated that "this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide." Reyes said in his statement, "We are unable to reach a legal conclusion as to the ultimate validity of marriage between persons of the same sex who completed their marriage ceremony in Utah between Dec. 20, 2013 and Jan. 6, 2014. That question remains unanswered and the answer will depend on the result of the appeal process."
The couples, in other words, are in a legal limbo: They have marriages that were legal when they entered into them that are not invalid now but also are not recognized by the state that granted them.
This raises three significant questions:
The first gay couple to be married in Utah, Seth Anderson (left) and Michael Ferguson, are seen after getting married at the Salt Lake County Clerk's office in Salt Lake City, Utah, Dec. 20, 2013.
Jim Urquhart / Reuters
Despite Utah's attempt to answer this definitively, even Herbert's chief of staff noted that "if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked." That may be a slight crack in the door, but it is sure to be emblematic of other situations moving forward. There is some recognition of those couples' marriages, and more will arise as days of this "limbo" status turn into weeks and months — a fact acknowledged in the chief of staff to the governor's letter, which noted, "We recognize that different state agencies have specific questions and circumstances that will need to be worked through."
The state, thus far, has not given much guidance. The statement from Reyes was only four paragraphs, and, asked whether the governor was given anything else in writing from the attorney general's office, a spokesman for Reyes told BuzzFeed, "No, there is no written opinion being given to the governor." The chief of staff to the governor's letter, meanwhile, was six paragraphs, and urged agencies to consult with the attorney general's office and the governor's chief counsel on those "circumstances" that are going to arise in coming weeks and months.
What's more, the American Civil Liberties Union of Utah already has announced that it is looking for plaintiffs to challenge the governor and attorney general's overall decision not to recognize the marriages while the appeal is pending. In a letter sent to Reyes, the ACLU of Utah's legal director warned that, in the organization's view, "refusing to recognize their marriages would put the state in conflict with the couples' due process rights."