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Tomsic said married couples were encouraged to consult their own attorneys about what to do in light of the state’s decision.
Michael Ferguson was the first to wed Dec. 20 at the Salt Lake County Clerk’s Office, having rushed over with his partner, Seth Anderson, from The Queens’ Tea shop that they own. They were both working again Wednesday when they learned about Herbert’s order, which prompted a very different reaction than Shelby’s ruling.
Love Elevated — a mass reception for Utah’s same-sex marriages
QSaltLake, Le Croissant Catering, X96 and UtahGayWeddings.com are teaming to host “Love Elevated,” a celebration of same-sex marriages that occurred in the 17 days since U.S. District Judge Robert Shelby’s ruling. The all-ages event will be held Saturday at The Rail Event Center, 235 N. 500 West, with donations going toward Restore Our Humanity — the group that funded the lawsuit. Doors open at 6 p.m.
"It was this realization of like, ‘Wow, Gov. Herbert really hates our families so much that he will spend any amount of money to break apart our families,’" Ferguson said.
Ferguson said he and Anderson will continue to relish the joy of being newlyweds. But they had begun to look into joining the same insurance plan at the University of Utah and filing taxes jointly both as residents and business owners — and even if they hadn’t taken such steps, he shouldn’t have to justify his indignation.
"I get really annoyed when the conversation is how big or small the inconveniences are for second-class citizens," he said.
Weston Clark is a stay-at-home dad in Salt Lake City. He and partner Brandon Mark have a 3-year-old adopted son, Xander, and just this week added a 7-day-old baby girl named Zoe to their family.
They were married at the clerk’s office by Salt Lake City Mayor Ralph Becker Dec. 20 after seeing photos posted by Anderson on social media and realizing that Shelby’s ruling made it possible. Even then, Clark felt the state would likely invalidate the marriage. But if it doesn’t quite surprise him, Herbert’s order on Wednesday — and his mention of protecting Utah families — does anger him.
"His attempt to not recognize my marriage puts my kids in jeopardy and endangers their security," Clark said. "If that’s what he believes is important to protect families, then I think his concept of protecting Utah families is all sorts of messed-up."
Doug NeJaime, a law professor at UC Irvine School of Law in California, said the line the state intends to draw between actions taken or not taken could be hard to maintain.
"What if a couple requested health benefits before this and continue to access going forward," NeJaime said. "There are ways in which this is going to create a lot of questions for people in state government."
The other big question, NeJaime added, is the different consideration same-sex couples may receive from the federal government versus the state government, which is also occurring in other states where gay marriage is not recognized.
That said, he called the state’s decision a "middle position."
"They are not saying the marriages are void," NeJaime said. "And they are not commenting on the ultimate validity of them. It’s a middle position that they are trying to carefully carve out, it seems."
The ACLU of Utah sent Reyes a letter Wednesday offering its opinion that the state should recognize any marriages that occurred before the Supreme Court issued a stay.
"These marriages are valid and have vested the married couples with rights that the state and federal government must recognize," said John Mejia, legal director, in that letter. "Any efforts to retroactively invalidate those licenses would fail because these marriages are protected by the due process guarantees of the Utah and United States constitutions."
On Wednesday afternoon, the ACLU tweeted that it is seeking plaintiffs for a lawsuit to protect rights of same-sex couples who married in Utah.
The ACLU said in its letter that the "precise issue" at stake in Utah has not been addressed by any court, but several courts have ruled in similar cases that marriages cannot be retroactively invalidated.
The California Supreme Court, for example, in 2004 initially invalidated 4,000 marriage licenses issued by clerks in San Francisco in defiance of state law but then, after couples sued, ruled in May 2008 that same-sex marriage was a fundamental, protected right. That upended a ban on gay marriage in place since 2000.
Some 18,000 California couples had married by Nov. 4, 2008, when voters passed Proposition 8 to again ban same-sex marriages. About two months after the general election, the California Supreme Court ruled the marriages that occurred before passage of Proposition 8 were valid.
Bill Duncan, president of the Marriage Law Foundation and the Sutherland Institute’s Center on Family and Society, said the state’s decision was the "obvious" one.
"There is hardly a lot of choice the governor had," Duncan said. "The situation Shelby created when he refused to issue a stay has created a lot of confusion about the status of those who took advantage [of the situation] and got marriage licenses. We are not quite sure what the legal status of those marriages would be. There was a lot of uncertainty injected into the situation by the failure to issue a stay."Next Page >
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