ACLU says same-sex marriages must be recognized by state
By jessica miller
and pamela manson
The Salt Lake TribuneFirst published Jul 17 2014 12:38PM
The marriages of same-sex couples who wed in Utah are valid and the state should not be allowed to "effectively divorce" them by placing their unions on hold, the American Civil Liberties Union said Thursday.
"The act of entering into marriage is a fundamental change in legal status, which is shielded by the Constitution from state interference," the ACLU said in a brief filed at the U.S. Supreme Court in Evans v. Utah.
The ACLU filing was in response to a request by Utah that the Supreme Court issue an emergency order preventing the state from recognizing the more than 1,000 same-sex marriages performed during a 17-day window starting in December when the unions were legal in the state.
With a stay barring recognition due to expire at 8 a.m. Monday — making the same-sex couples eligible for spousal benefits — Utah asked for the emergency order on Wednesday. The state said it believes it will ultimately prevail in its fight to revive a ban on same-sex unions, which it says would nullify the marriages entered into during the window.
But the ACLU said that even if the same-sex marriage ban is revived, the state will be constitutionally barred from nullifying the marriages that took place between Dec. 20, 2013, and Jan. 6, 2014. It said that "couples that do legally marry are protected by the same fundamental rights and liberty interests as any other legally married couple."
Utah continues to defend its right to define marriage as a union between one man and one woman on two fronts — in the historic Kitchen v. Herbert case that toppled the state’s ban on same-sex unions in December, and in the newer Evans v. Utah suit, in which say the state must recognize their Utah marriages.
U.S. District Judge Dale Kimball ruled in May in the Evans case that Utah must recognize and imbue all same-sex marriages performed in the state with the same rights and privileges afforded to married opposite-sex couples. His decision did not go into effect immediately to give the state time to appeal.
Utah’s emergency application was filed with U.S Supreme Court Justice Sonia Sotomayor, who oversees the federal court circuit of which Utah is a part and who, in January, halted the issuance of marriage licenses to same-sex couples in Utah after 17 days of marriages. If Sotomayor refuses to intervene, the state wrote, it will seek relief from the full U.S. Supreme Court.
The state had first gone to the 10th Circuit Court of Appeals. A panel of three judges, who heard the Kitchen v. Herbert lawsuit, subsequently denied the request to indefinitely stop married gay and lesbian couples from applying for benefits until all litigation was settled.
Judges Carlos F. Lucero and Jerome A. Holmes authored the succinct denial without offering an analysis of their reasons. But, in denying Utah’s request, the judges declared the state failed to prove it would suffer irreparable harm in recognizing the marriages and didn’t demonstrate that the state is likely to prevail in its appeal.
Last week, one appeals judge, Judge Paul J. Kelly, wrote a dissent, backing the state’s right to judicial resolution and arguing that allowing gay and lesbian couples’ marriages to be imbued with rights would undermine the appeals process.