Judge won’t stop the weddings
Courts • Most counties hand out marriage licenses to same-sex couples while state asks appeals court for stay.
Published: December 24, 2013 10:43AM
Updated: February 27, 2014 03:55PM
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Francisco Kjolseth | The Salt Lake Tribune Joyce Lewallen, left, marries her partner of 20-years Lecia Johnson as Jackie Biskupski officiates on Monday, Dec. 23, 2013. Hundreds of same-sex couples descended on county clerk offices around the state of Utah, including the Salt Lake County office to request marriage licenses. A federal judge in struck down the state's ban on same-sex marriage last Friday, saying the law violates the U.S. Constitution's guarantees of equal protection and due process.

Moments after a federal judge in Utah struck down the state’s request to halt same-sex marriage, there were tears, hugs and high-fives among lesbian and gay couples waiting to wed at county clerks’ offices across the state.

But at the federal courthouse, where the latest clash over these couples’ right to marry was decided Monday, there was little hurrah.

Instead, lawyers who represent the plaintiffs in the case exchanged tenuous smiles and cautious congratulations. They told reporters they were “relieved” rather than thrilled.

They had won the battle, but their fight is far from over.

Just after 11 a.m., U.S. District Judge Robert J. Shelby denied the state’s motion for a stay that would have stopped marriage licenses from being issued to same-sex couples, who came out in record-setting numbers throughout the state to seek the licenses.

Shelby refused to accept the state’s claim that allowing same-sex couples to continue marrying in Utah would cause irreparable harm to the state and — eventually — to the couples themselves.

“The reality is this is something of a mess,” Shelby said. “But, at its core, the state essentially relies and reasserts arguments it previously submitted to me, arguments I previously considered and rejected. Those findings prevent me from providing a stay today.”

Peggy Tomsic, who represents the six plaintiffs in the Kitchen v. Herbert lawsuit, praised the judge outside the courthouse for denying the state’s move to stop marriages.

“It’s awfully easy, I think, to get caught up in the emotion and do a knee-jerk reaction,” she said. “Fortunately, we have a judge who takes his oath of office seriously, which is to read, interpret and apply the United States Constitution and not be pressured by a moral or political majority.”

It didn’t take long for Utah officials to regroup.

An hour later, state attorneys filed a request with the 10th Circuit Court in Denver for an emergency order that would stop the marriages. It was the state’s third such request since Friday, when the state filed its appeal of Shelby’s ruling with the circuit court in defense of Amendment 3.

The previous two were denied by the high court, which oversees federal appeals out of Utah, for procedural reasons.

Utah’s latest filing asks the 10th Circuit Court to stop same-sex marriages immediately, while the appeals court decides whether to overturn Friday’s decision. The appeals court is not expected to make that decision for at least several months.

Without a stay preventing more marriage licenses from being issued to same-sex couples, Utah Attorney General Philip Lott argued, those months could be wrought with “chaos,” “confusion,” “injury,” and obscured by a “cloud of uncertainty.”

The longer same-sex marriage is allowed to continue in Utah, the more licenses will likely be issued and the more couples will likely wed. This, Lott said, will only cause problems for the state, which has not had ample time to prepare for what consequences these unions might have.

“Time is of the essence to stop these marriages by staying the district court’s injunction,” according to the state’s motion. “In order to maintain the historic status quo of man-woman marriage that the state and its citizens validly enshrined in the Utah Constitution.”

Last week, Utah became the 18th state in the U.S. to legalize same-sex weddings.

But after Monday’s ruling, there was still no definitive answer to how this will impact the Beehive State.

Monday afternoon, the director of the Governor’s Office of Management and Budget sent an email to Gov. Gary Herbert’s cabinet members requesting a list of state services, programs and policies that might be affected by same-sex marriages.

In the email, which was obtained by The Salt Lake Tribune, Kristen Cox instructs her colleagues to “include a brief outline of the potential impact and conflicts/questions” on their department as a result of the same-sex marriage decision.

During his address in federal court, Lott said strain on state government and resources is just one of the many outcomes of this ruling, which stands to upset Utah’s “status quo.”

“For more than 100 years, Utah has adhered to a definition of marriage as between a man and a woman,” Lott said. “The court ruled that traditions and history are insufficient reason to deny fundamental rights. ... But we think our laws and histories of the past half century are of the utmost relevance here. This is a fundamental shift away from society’s understanding of what marriage is.”

But Tomsic said it’s a moot argument because since Friday, the status quo of Utah has changed.

“County clerks are obligated to issue licenses to same-sex couples to get married. These couples are getting married. They are married. That’s the new state of affairs,” Tomsic said. “The cloud of confusion is in the minds of the state.”

Tomsic, who made an impassioned argument before Shelby’s ruling Monday, said the state was regurgitating the claims made to the court before Shelby struck down Amendment 3 to the state constitution, which was approved by Utah voters in 2004.

She also attacked the state’s lack of preparedness, saying if they wanted a stay in the matter, they should have asked for one when the judge took the case under advisement weeks ago.

The judge agreed.

In his ruling, Shelby allowed the state to move forward immediately — up the chain to the 10th Circuit, which will ultimately decide whether the district court’s ruling will stand — but it will be several weeks from now until the appeals court will set a schedule for the filing of briefs, a court official told The Tribune.

According to documents filed with the 10th Circuit on Monday afternoon, state attorneys expect to have a “significant likelihood of success on appeal.”

“The district court’s decision is wrong and ignores basic concepts of due process and equal protection,” state attorneys wrote. “Neither this Circuit nor the Supreme Court has ever held that a state is constitutionally prohibited from defining marriage as only the legal union of a man to a woman. Neither this Circuit nor the Supreme Court has ever held that the fundamental right to marry includes same-sex marriage.”

If things don’t go its way in Denver, said acting Utah Attorney General Brian Tarbet, the state may consider taking the case to the U.S. Supreme Court.

“We’re driving on,” he said. “It’s important that the voice of the people be maintained and we’re going to do that, cognizant of the fact that this is very emotional for our citizens on both sides.”

Tarbet, who was replaced Monday when Herbert appointed Sean Reyes as the state’s attorney general, said it’s one of “several options” the state is exploring in the aftermath of Shelby’s ruling.

“This is a complicated case,” he said outside the courthouse Monday. “We’re going to hope that we will get to Denver and get a better result.”

Reyes, who was asked about the stay during his first day as Utah’s top cop, said he intends to “continue to defend the laws of the State of Utah that have been passed by the citizens directly and through the legislative process.”

State attorneys argued before Shelby that irreparable harm would befall the state as well as same-sex couples who marry in Utah should the ruling be overturned.

“No one wins if Utah’s marriage laws are changed back and forth,” Lott told the judge. “It puts everyone in the uncomfortable position of knowing that these marriages, should a higher court overturn this court’s ruling, will most likely be void. ... The public has an interest in certainty and in order and avoiding unnecessary expenditures.”

Part of this argument was the claim that should Shelby’s ruling be overturned in the future, same-sex marriages entered into now could be later invalidated.

This, Tomsic said, is unprecedented.

“If you are married, it is a constitutionally protected right of privacy, and a fundamental right of marriage,” she said outside the courthouse Monday. “If it happens under an existing law — which this rule from this court is — this state cannot take those rights away.”

Cliff Rosky, a University of Utah law professor and Equality Utah board member, said it would be unheard of to retroactively invalidate marriage licenses that were legally issued.

“In the history of the U.S., no court has ever retroactively invalidated a marriage that was lawfully entered,” he said. “To take away marriage after the fact would be extraordinary and discriminatory against gay couples.”

Meanwhile, hundreds of same-sex couples resumed obtaining marriage licenses on Monday. In Salt Lake County, a record-setting 477 marriage licenses were issued since Friday, mostly to same-sex couples.

But not all counties were complying with Shelby’s order. Several declined to issue licenses Monday, indicating they wanted to see how Shelby ruled on the state’s request for a stay.

The judge, upon hearing of this in court, explicitly said his ruling allows all people the “fundamental right” of marriage. He said counties, and officials, who do not comply are breaking the law.

“My intent is to prevent the state of Utah — or anyone acting on its behalf — from denying same-sex couples the protections guaranteed by the U.S. Constitution.” he said.

In Utah County, the clerk’s office was not issuing same-sex marriage licenses even after Shelby ruled, and they turned away at least three couples.

Utah County Clerk Bryan E. Thompson told The Salt Lake Tribune he would wait to see how the 10th Circuit Court of Appeals in Denver ruled on Shelby’s decision before deciding how to proceed.

This uncertainty and confusion, state officials said, would be aided by a stay that would afford the state time to determine how to proceed.

As of late Monday, the plaintiffs had filed a response in opposition to both stay requests from the state.

“[The state asserts] that permitting same-sex couples to marry will create ‘uncertainty’ and threaten ‘the democratic process in Utah.’ But the democratic process is strengthened, not threatened, when courts vindicate the fundamental rights and liberties of citizens,” according to the response, written by attorney Jennifer Fraser Parrish. “The immediate implementation of marriage equality will not harm the state in any way. Appellants can simply apply its existing marriage laws and administrative structures to same-sex couples.

No new laws, procedures, or administrative requirements are necessary and the county clerks can simply issue marriage licenses as they do in the regular course of their business.”

The 10th Circuit Court did not immediately rule on the state’s requests.

In a statement following Shelby’s refusal to halt same-sex marriages, the governor declared he was disappointed but not surprised.

“Typical wisdom would have had, with the order of last Friday, a stay to accompany with it,” Herbert said. “It clearly was going to be appealed, no matter what the decision was, it would be appealed by either side. So the process will move forward, that’s the democratic process.”

mlang@sltrib.com

Twitter: @Marissa_Jae

Tribune reporters Jim Dalrymple II, Jessica Miller, Robert Gehrke, Erin Alberty and Matt Canham, as well as Donald W. Meyers and Robert Boczkiewicz, contributed to this story.