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.
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"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.Next Page >
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