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State attorneys: ‘Hold’ on Utah same-sex marriages warranted
First Published Feb 27 2014 03:06 pm • Last Updated Feb 27 2014 10:28 pm

State attorneys say same-sex couples do not have a "protectable" interest that requires Utah to recognize marriage licenses issued before a stay put a hold on a ruling that overturned Utah’s ban on such unions.

In a brief filed in U.S. District Court for Utah on Wednesday, the state says that because the decision was stayed pending an appeal, it is not a final order that can be contested. Nor should a federal judge grant the "truly extraordinary relief" of an injunction that would require the state to recognize the marriages — a move that would amount to a "decision before a decision before a decision on finality," the state argues.

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Instead, it wants the judge to dismiss the lawsuit and award the state costs and fees associated with responding to it.

Four couples, represented by the ACLU of Utah and the law firm Strindberg & Scholnick, filed the lawsuit in January contesting the state’s decision to put recognition of their marriages on hold during the appeal. All were married in Utah after U.S. District Court Judge Robert J. Shelby’s Dec. 20 ruling that a constitutional amendment barring such marriages was unconstitutional.

Over the next 17 days, more than 1,300 couples married in Utah. On Jan. 6, the U.S. Supreme Court stayed Shelby’s decision and put a halt to the weddings.

Two days later, the Office of the Governor notified state agencies that marriages that had already occurred were frozen at whatever stage couples had reached in seeking legal recognition.

Attorneys for the couples argue that their marriages, as well as others that occurred before the stay, are legally valid, should be recognized and that the couples should be allowed to pursue whatever rights associated with marriage they desire — from seeking new driver licenses to being listed as a spouse for health and insurance purposes. They asked U.S. District Court Judge Dale A. Kimball to issue a preliminary injunction of the state order.

Kimball will hear arguments on the motion seeking a preliminary injunction on March 12. At the same hearing, Kimball will consider whether to send several questions on state law to the Utah Supreme Court for an opinion, as requested by the couples.

The state, in a series of filings, says most of the claims raised in the ACLU lawsuit are groundless or not ripe for deciding. It says granting a preliminary injunction is unwarranted given that the state law is "in flux" and plaintiffs have other means to secure most of the benefits they seek, which also means they can’t show irreparable harm.

"These plaintiffs have all been living in Utah for years without enjoying the rights to marriage — even though they have the option of living in a state that would recognize their marriage" which supports the conclusion the harm they would suffer is not irreparable, the state said.

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It acknowledges that the Utah Tax Commission "initially" said that couples who married before Shelby’s ruling was stayed could jointly file state taxes for the year 2013 and couples can, for example, draft medical directives for health care emergencies and give partners authorization to pick up a child at school.

But the state says Utah cannot otherwise "provide plaintiffs with any protections and responsibilities attendant upon marriage which were not completed prior to Jan. 6." And granting the injunction would compound problems if Shelby’s decision is reversed.

With Shelby’s decision on hold, Utah’s law reverts to the status quo and it would be illegal for the state to recognize the marriages, the state said.

"The only thing ‘clear and certain’ in this case is that plaintiffs’ marriage licenses were issued, contrary to Utah law, but pursuant to a federal judicial injunction, which has been stayed and is on appeal," the state argues, and it is not required to grant marital benefits until the legal issues are resolved by the 10th Circuit Court of Appeals.

In short, until then the couples "currently have no legal rights to their marriages," according to one state filing, and are "technically void under Utah law."

If Shelby’s ruling is overturned, then the plaintiffs’ marriages would have "would have been based on an erroneous, temporary legal ruling — a legal error."

The state attorneys say the situation is different from what happened in California in 2008, when that state’s supreme court issued a final order legalizing same-sex marriages. The California Supreme Court later ruled that marriages entered into after its 2008 decision and before voters passed Proposition 8, once again banning such unions could not be retroactively voided.

"In the unique circumstances here, the bar against applying legislation retroactively does not apply," the state said.

The plaintiffs also have asked Kimball to have the Utah Supreme Court resolve two issues regarding state law: whether couples married before Shelby’s order was stayed have vested rights in their marriages under the state constitution; whether the state can withdraw recognition after granting it.

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