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Utah counties split on issuing same-sex marriage licenses

Published December 23, 2013 10:01 pm

Marriage • Most governments follow federal court ruling, but a few refuse.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah counties looking to the state government for clarification on whether to issue marriage licenses to same-sex couples Monday were left to their own devices — and some turned couples away despite plain talk from U.S. District Judge Robert J. Shelby.

In essence, Shelby, who on Friday struck down Utah law forbidding same-sex marriage, said Monday that county clerks who do not issue licenses to gay and lesbian couples are violating the law.

"My original intent ... was to find that a law of the state of Utah that denies same-sex couples the opportunity to marry is in violation of due process and equal protections under the U.S. Constitution," Shelby said. "Therefore, 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."

That was clear to some but not to others. By late Monday, 22 of Utah's 29 counties said they would issue marriage licenses.

No licenses • Box Elder County will not. County Attorney Stephen Hadfield said the court ruling left county clerks in a "damned if you do, damned if you don't" position. "There is a conflict between the state statute and the judge's ruling," he said. "We need further clarification."

Cache County was not issuing marriage licenses to any couples, regardless of gender. County Attorney James Swink released a statement Monday saying the Cache County Clerk's Office had closed "to sort out the legal issues and confusion created in the wake of Judge Shelby's opinion."

Neither Gov. Gary Herbert's office nor the office of newly named Attorney General Sean Reyes was offering advice to counties Monday.

Herbert said Shelby's ruling created "a lot of problems for us with conflicting laws in the state of Utah and what the county clerks should be doing...."

Ryan Bruckman, the A.G.'s spokesman, said state officials hoped the 10th U.S. Circuit Court of Appeals would stay the ruling pending an appeal.

"That would relieve problems for the counties," Bruckman said. "We want to make sure everyone is on the same page."

In fact, counties were not on the same page. Throughout the day Monday, some counties that did not heed Shelby's ruling Friday pivoted and began issuing licenses, or said they would begin doing so on Tuesday. As of late Monday, Beaver, Carbon, Weber, Davis, Daggett, Emery, Salt Lake, Summit, Tooele, Duchesne, Uintah, Morgan, Millard, Grand, Iron, Kane, Rich, Sanpete, Sevier, Wayne, Washington and Wasatch counties were issuing same-sex marriage licenses.

Counties not issuing licenses — in addition to Box Elder and Cache — were Juab, Piute, San Juan and Utah. Garfield County officials could not be reached for comment.

A tale of two counties • Salt Lake County District Attorney Sim Gill said he wasn't waiting to obey the court's order that struck down the Utah law against same-sex marriage. The state's most populous county started issuing licenses Friday and continued Monday.

"We don't think we are violating any state law [by issuing marriage licenses]. A federal judge has said the law [forbidding same-sex marriage] is unconstitutional," Gill said. "We are not going to violate anyone's constitutional rights."

Beyond that, Gill said that failing to issue marriage licenses to qualified same-sex couples could expose the county to legal liability.

"We would be open to hundreds of lawsuits," he said. "We are not prepared to take on that [financial] liability."

Utah County Clerk Bryan E. Thompson turned aside at least three same-sex couples Monday, citing a need for legal clarification from the county attorney.

"Until I receive the further clarification that I'm seeking, the Utah County clerk's office will not be making any policy changes in regards to [whom] we issue marriage licenses," Thompson said.

For Helen Wright, Utah County's refusal was the second denial since Friday for her and her partner, who did not want to be identified. "I can't understand why they're denying it," Wright said.

Uncharted territory • But Thompson said he was not issuing licenses in Utah's second most populous county for the benefit of couples as well.

"We're in uncharted territory," he said. "Those issued licenses could have their marriages overturned" if the courts stay the decision.

Keri Burton and Melanie Lloyd weren't buying Thompson's argument.

"I don't accept that," said Burton, an Orem resident.

"Other counties are issuing licenses," Lloyd said.

One couple is filing a lawsuit against Utah County. Shelly Eyre and Cheryl Haws, of Lehi, went to the clerk's office on Monday, thinking licenses would be issued to them after Shelby denied the state its request for a stay. Instead they were given a notice of refusal.

"It's the last straw in a long line of insults," Eyre said. "The point of going to Utah County is that this is where we live and pay taxes and raised our kids and have a business. We wanted to get married here."

Eyre and Haws, who have been a couple for 8½ years, returned and filed a notice of claim, a required document alerting a government agency that a plaintiff intends to sue.

Same-sex marriage supporters were also disappointed by Thompson's decision.

Berta Marquez, a Mormon who is also a nondenominational minister, had hoped to officiate for couples at the county building. Instead, she lamented what she saw as hypocrisy.

"As a Mormon, it saddens me that as a people who were persecuted for not fitting the majority marriage template, we are now being inhospitable to our LGBT brothers and sisters," Marquez said.

Brigham Young University law professor Lynn Wardle on Monday downplayed the civil liability of county clerks refusing to issue marriage licenses.

"Oh, heavens no," he said during a Trib Talk interview Monday, referring to civil liability. "To me that's a bush league kind of quibble."

But ultimately, counties would run the risk of civil liability if they do not comply with the court's order, said Paul Cassell, a University of Utah law professor and former federal judge. But, he added, county officials may have a little wiggle room if the 10th Circuit Court doesn't issue a stay in a short period of time.

"If the 10th Circuit won't stay [Shelby's ruling] there is no basis at the point" for not issuing same-sex marriage licenses, Cassell said.

csmart@sltrib.com

Marissa Lang and Erin Alberty contributed to this story. Urgency • The couples waste no time, rush to make their relations official. > A6

Taxes • So what about filing jointly? > A5

Social media • Witnessing Utah marriage history and happiness in the news. > B7