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(Keith Johnson | The Salt Lake Tribune) Jason Dautel, left and Micah Unice kiss after being married by officiant Derek Snarr outside the Salt Lake County clerks office, Friday, December 20, 2013. A federal judge in Utah Friday struck down the state’s ban on same-sex marriage, saying the law violates the U.S. Constitution’s guarantees of equal protection and due process.
Will Utah's same-sex marriages stand? Precedent in California, New Mexico offers clues
Marriages » During stay, are they valid or not?
First Published Jan 07 2014 09:03 pm • Last Updated Jan 08 2014 10:58 am

Jessica Church woke up Monday morning happy to begin her wedding week.

She had scheduled a hair appointment for the weekend, a manicure for Tuesday and her parents were finalizing plans to host the celebration Saturday at their Layton apartment complex.

At a glance

State still seeking help

The Utah Attorney General’s Office has extended the deadline for applications from outside counsel interested in helping it defend a ban on same-sex marriage for another week to “increase competition” for the contract.

Proposals from individuals and firms are now due Jan. 14 at 5 p.m. The state is seeking help on its appeals before the 10th Circuit Court of Appeals and potentially the U.S. Supreme Court.

According to a press release, applicants’ proposals must outline appellate experience in both courts and include hourly rate fees and a maximum cost cap.

Proposal requirements are available at http://www.bidsync.com, under solicitation # JP14016, or at http://1.usa.gov/1cG2sCM.

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"I was all excited," Church said.

But Church’s and fiancée Vanessa Garcia’s plans came to an abrupt halt on Monday when the U.S. Supreme Court issued an order staying U.S. District Court Judge Robert J. Shelby’s Dec. 20 decision that overturned a ban on same-sex marriages.

Rev. Heron Herodias, who planned to marry the couple, called the county offices to confirm their license was still valid. The answer was no.

"According to their legal interpretation, I would be committing a class A misdemeanor if I signed [the] paperwork," Garcia said.

That predicament is exactly what the state says it hoped to avoid when it attempted to get a stay in the hours and days immediately following Shelby’s ruling. The decision now is on hold at least until the 10th Circuit Court of Appeals rules on the state’s appeal.

Since Monday, Utah Attorney General Sean Reyes and a legal team have been working "around the clock" to determine what the stay means for couples who were legally married during the 17 days between Shelby’s ruling and the Supreme Court order.

County clerks estimated more than 1,300 same-sex couples were married. An unknown number of others received licenses but, like Church and Garcia, had not yet married.

Reyes said earlier he was "carefully evaluating" the situation because it "impacts Utah citizens so personally."

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Spokeswoman Missy Larsen said the Attorney General’s Office could give Utah Gov. Gary Herbert its findings as soon as Wednesday.

In its filings to the 10th Circuit Court and the U.S. Supreme Court, the state has indicated it wanted to avoid having to "unwind" same-sex marriages if it prevails in its appeal, a signal that it might want to undo the marriages later.

While it’s true, as Reyes said, that there is no "clear legal precedence" to guide Utah, same-sex couples in two other states have landed in a similar situation.

In 2004, more than 60 same-sex couples married in Sandoval County, New Mexico, after receiving licenses from county clerk Victoria Dunlap, who said at the time she could find no state law against it. The clerk’s actions sparked a political uproar and New Mexico Attorney General Patricia Madrid filed a lawsuit that restrained Dunlap from continuing to issue licenses to same-sex couples.

Questions about the validity of the Sandoval marriages lingered for a decade. Subsequent county clerks apparently stamped the licenses issued by Dunlap "void" or "illegal."

But in August, New Mexico Attorney General Gary King sent a letter to the county informing the current clerk that only courts, not clerks, have the authority to declare those 2004 marriages invalid.

"Unless and until a court of competent jurisdiction acts, a marriage license issued by a county clerk in New Mexico is presumptively valid," King wrote in his Aug. 28 letter.

In December, the New Mexico Supreme Court ruled it was unconstitutional to deny marriage licences to same-sex couples.

The year 2004 also was pivotal in California’s same-sex marriage battle.

On Feb. 12, 2004, San Francisco Mayor Gavin Newsom ordered clerks to issue licenses to same-sex couples in defiance of state law.

Some Utah lawmakers, who were debating Amendment 3 that February, called what was happening in San Francisco — as well as Massachusetts, which was set to begin allowing gay marriages that spring — as "confusion" and "anarchy."

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