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(Al Hartmann | The Salt Lake Tribune) John Mejia, legal director, ACLU of Utah, center, and Erik Strindberg, lawyer for plaintiffs, right, announce in Salt Lake City on Tuesday, Jan. 21, 2014, the filing of a lawsuit over the state's refusal to recognize valid same-sex marriages that occurred before the U.S. Supreme Court issued a stay. Two couples in the suit are seated behind.
Utah ACLU sues state over treatment of same-sex couples

The lawsuit calls stripping the couples of their marital rights illegal, arbitrary and capricious.

First Published Jan 21 2014 01:33 pm • Last Updated Jan 22 2014 07:29 am

The ACLU of Utah and a private law firm filed a lawsuit in state court Tuesday on behalf of four same-sex couples who say Utah’s decision to put recognition of their marriages on hold has created a "legal limbo" that bars them from accessing critical protections for themselves and their families.

"We brought this lawsuit because these couples, and what we estimate are over 1,000 other same-sex couples, were legally married under Utah law," John Mejia, legal director of the ACLU of Utah, said during a news conference. "We ask the court to make clear and order that these unions must be treated the same as any other Utah marriage."

At a glance

State gets filing extension

The 10th U.S. Circuit Court of Appeals has given Utah more time to file its appeal challenging a lower court ruling that the state’s ban on same-sex marriage is unconstitutional.

The court agreed to extend the filing deadline by seven days, which means the state’s brief is now due Feb. 3. It had been due Jan. 27. The court also extended other deadlines, giving the plaintiffs’ attorneys until Feb. 25 to file a response and the state until March 4 to submit its final arguments.

Utah had asked the court for a 10-day extension, which it said was warranted because of the importance of the case and because hiring outside counsel took longer than expected. The plaintiffs’ attorneys objected to more time, saying every additional day prolongs the injustice to same-sex couples caused by the marriage ban.

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Even Utah Attorney General Sean Reyes acknowledged the validity of the marriages at the time they were performed, Mejia added.

But the state’s Jan. 8 decision to freeze recognition while it appeals a federal judge’s decision overturning Utah’s ban on same-sex marriage has "reduced these unions to second-class marriages," said Erik Strindberg, of the Salt Lake City law firm Strindberg & Scholnick. Strindberg said the lawsuit was filed in Utah’s 3rd District Court in West Jordan rather than federal court because three of the four claims involve state claims.

The lawsuit alleges the state’s move to retroactively strip the couples of their marital rights is illegal, arbitrary and capricious. It deprives them of their liberty and property rights, leaving them in a "constant state of insecurity and uncertainty, which is emotionally devastating." The suit asks that the marriages be declared valid — even if Amendment 3’s ban is eventually deemed constitutional.

The plaintiffs are JoNell Evans and Stacia Ireland; Marina Gomberg and Elenor Heyborne; Matthew Barraza and Tony Milner; Donald Johnson and Carl Fritz Shultz.

Defendants in the lawsuit are the state, Reyes and Utah Gov. Gary Herbert.

The attorney general’s office reiterated Tuesday that with U.S. District Court Judge Robert J. Shelby’s decision now stayed, it is required to uphold the law barring same-sex marriage. Herbert said much the same in a statement released by his office.

"Governor Herbert has said throughout this process that his responsibility is to follow the law," said spokesman Marty Carpenter. "That is exactly what the administration is doing and we respect the rights of those who disagree to take their grievances before a judge."

While not a class-action lawsuit, the complaint seeks an injunction of the state’s decision that would apply to all marriages that occurred during the 17-day period between the Dec. 20 ruling overturning Utah’s ban and the Jan. 6 decision by the U.S. Supreme Court to grant a stay of the order.

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Clerks in Utah’s 29 counties reported issuing more than 1,300 marriage licenses to same-sex couples during that period. The lawsuit states that more than 1,000 of those couples solemnized their marriages before the stay took effect.

On Jan. 8, Utah announced the marriages would be frozen during its appeal to the 10th Circuit Court of Appeals, which will likely be followed by an appeal to the U.S. Supreme Court.

Although Utah placed the marriages on hold, it later said the couples could file joint state tax returns. The attorney general’s office also acknowledged that the licenses may be considered valid in other states that recognize same-sex marriage. And the U.S. Department of Justice announced valid marriages would be recognized for federal benefit purposes.

That has created much uncertainty for same-sex couples, Mejia said, from what happens to ongoing adoption proceedings to whether they can add their spouses to their insurance plans and whether they will be included in making medical decisions for their spouses.

"Regardless of what ultimately happens in the federal challenge to Utah’s marriage ban," Mejia said, "the marriages that have already occurred are valid and must be recognized now."

For Tony Milner, 34, and Matthew Barraza, 38, it’s about ensuring that their 4-year-old son, Jesse, has two legal fathers. The two men were born, reared and educated in Utah and, though they are no longer members of The Church of Jesus Christ of Latter-day Saints, have the support of their families.

"We always wanted to be dads," Milner said. "Four years ago we welcomed Jesse into our lives at birth."

They were on hand for the birth, were able to cut their son’s umbilical cord and have an ongoing, open relationship with Jesse’s biological parents. They married in Washington, D.C., in 2010.

Since only one of them was able to legally adopt Jesse under Utah law, they chose Barraza, who is an attorney.

Their worries about how to make Milner’s relationship with their son just as secure seemed to vanish with Shelby’s ruling. They rushed to the Salt Lake County clerk’s office Dec. 20 to make their 11-year relationship official after getting word of the decision. Six days later, they filed an adoption proceeding to add Milner as their son’s second legal parent, providing him with the "security that all children deserve so that, heaven forbid, should something happen to one of us, Jesse would have the security of having his other parent to take care of him and to provide for him."

The first hearing in the adoption proceeding was set for Jan. 10, but they asked to have it postponed after a court clerk contacted them and said they would have to notify the attorney general’s office of the pending adoption.

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