Washington Post: Utah's marriage purgatory
Utah usually is known for grand vistas, fluffy snow and social conservatism so pronounced that buying a beverage containing more than 3.2 percent alcohol is a real hassle. The biggest issue along the Wasatch Range these days, though, is what will happen to the roughly 1,000 gay and lesbian couples who rushed to obtain marriage licenses after a federal court suspended the state's ban on same-sex marriage. Utah Gov. Gary Herbert announced Wednesday that, although the state won't be ripping up marriage licenses just yet, it will not recognize them, just as it will not recognize same-sex unions codified in, say, California. That's not the fair answer, and Utah's same-sex married couples should challenge it.
On Dec. 20, U.S. District Judge Robert Shelby threw out the state's same-sex marriage prohibition. He refused to stay his ruling, as did the U.S. Court of Appeals for the 10th Circuit. On Monday, however, the U.S. Supreme Court granted the state a stay after more than two weeks in which Utah officials issued marriage licenses to same-sex couples who requested them.
Varied Supreme Court rulings don't offer clear guidance on whether Utah can curb the effect of activity under such a district court ruling once that ruling is stayed or overturned. At the least, it would be reasonable to let the licenses persist normally as long as the question of their legality is open. A final court decision might take years to come down. In the meantime, same-sex couples in Utah who made it to the altar will want to file taxes jointly, enroll jointly for health insurance and enjoy spousal inheritance benefits, to name a few things.
Incoherently, Mr. Herbert is counseling state officials not to withdraw state services already offered to married same-sex couples, such as driver's licenses that reflect new married names, but to refuse extending new services to those same couples while litigation continues.
We'd like to see a federal court review Mr. Herbert's action, and the upholding of the original decision. But what happens if a higher court overturns Judge Shelby's ruling? It's relatively easy to conclude that people shouldn't be liable for criminal penalties or accrue civil fines for acting pursuant to a federal court decision, even if that decision is later deemed an error. The practical results of decisions by lower federal judges shouldn't always be preserved if they are overruled later. But in this case it's offensive for courts to offer the right of legal, lifelong partnership to Utah's same-sex couples and then snatch it away after those couples acted in good faith.
The best result would be for Utah, led by Mr. Herbert, to make these questions moot by trying to find a way to recognize, permanently, those 1,000 marriage licenses under existing or new state law. For that matter, we'd like the state to render the unfolding legal fight unnecessary by ridding itself entirely of its discriminatory ban.