Utah Supreme Court Stays Orders On Birth Certificates For Adoptees of Same-Sex Parents

According to AP and a release from the Utah Attorney General's Office, the Utah Supreme Court on Friday night issued a stay of several state trial judges' orders that required the Utah Department of Health to issue birth certificates in same-sex parent adoptions.  The stay came in response to a Petition for Emergency Relief filed by the Attorney General's office seeking clarification as to whether the trial court orders violate other provisions of Utah law that prohibit the state from recognizing same-sex marriages. Those provisions remain in effect while federal constitutional challenge to the ban on same-sex marriage is being appealed. (See prior posting.) Friday's state Supreme Court stay remains in effect until the issue of recognizing same-sex parent adoptions is resolved by the state Supreme Court.

10th Circuit Hears Oral Arguments In Challenge To Utah's Ban On Same-Sex Marriage

Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments in the Utah same-sex marriage case, Kitchen v. Herbert. Audio of the full oral arguments is available online. Equality on Trial has a written summary of the oral arguments. In the case, a Utah federal district court declared Utah's state constitutional and statutory bans on same-sex marriage invalid under the due process and equal protection clauses of the federal constitution. (See prior posting.)

Developments In Utah Same-Sex Marriage Litigation

Numerous amicus briefs have been filed in the 10th Circuit in Kitchen v. Herbert, the appeal of the Utah federal district court's decision striking down the ban on same-sex marriage in Utah. Of particular interest is the amicus brief (full text) filed yesterday by major religious organizations urging reversal of the district court. The brief, filed by the United States Conference of Catholic Bishops; National Association of Evangelicals; The Church of Jesus Christ of Latter-Day Saints; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; and Lutheran Church—Missouri Synod argues:

Undermining the husband-wife marital institution by redefining it to include same-sex couples will, in the long term, harm vital child-welfare interests that only the husband-wife definition can secure. The result will be more mothers and fathers concluding that the highest end of marriage is not the welfare of their children but the advancement of their own life choices. We know, from personal experience over numerous decades of ministering to families and children, that more focus on satisfying adult needs will not benefit vulnerable children.

The Salt Lake Tribune has a summary of the over 20 briefs filed in support of Utah's position, and reports at more length on the brief filed by religious organizations.

Meanwhile, last month the ACLU filed a lawsuit (press release) seeking to require Utah to recognize as valid the more than 1000 same-sex marriages performed in the state after the district court struck down the ban and before the U.S. Supreme Court stayed the decision.  The complaint (full text) in Evans v. State of Utah, (UT 3d Dist. Ct., filed 1/21/2014), argues that by not fully recognizing the marriages, the state has deprived couples of liberty and property interests protected by the due process clause of the Utah constitution and by 42 USC Sec. 1983:

By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of all same-sex married couples, including Plaintiffs and their families and children, in legal limbo and created uncertainty as to their rights and status in virtually all areas of their lives.

The ACLU provides links to other documents and items relating to the case.

U.S. and Utah Clarify Status of Same Sex Marriages That Were Performed In Utah Before Supreme Court Stay

U.S. Attorney General Eric Holder today issued a statement (full text) confirming that the federal government will recognize the same-sex marriages performed in Utah in the two weeks before the U.S. Supreme Court issued a stay stopping them while an appeal to the 10th Circuit is pending. Describing the Supreme Court's action as "an administrative step," Holder said in part:

for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.  These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.

Meanwhile yesterday Utah's Attorney General distributed a letter (full text) to all County Attorneys and County Clerks in the state advising that they should send marriage certificates to same-sex couples whose marriage ceremonies took place between Dec. 20 and Jan. 6. The letter advises in part:

Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed.

While the validity of the marriages in question must ultimately be decided by the legal appeals process ..., the act of completing and providing a marriage certificate for all couples whose marriage was performed prior to the morning of January 6, 2014, is administrative and consistent with Utah law.  Therefore, it is recommended that county clerks provide marriage certificates to all persons whose marriages were solemnized during this period as an administrative function and not a legal function. This would allow ... couples ... to have proper documentation in states that recognize same-sex marriage.

Advocacy Group Asks U.S. and 18 States To Recognize 1300 Utah Same-Sex Marriages

Given the uncertainty surrounding the status of some 1300 same-sex marriages that were solemnized in Utah between December 20 (when a district court legalized them) and Jan. 6 (when the U.S. Supreme Court stayed the district court order), Human Rights Campaign yesterday wrote the attorneys general in the 18 states that recognize same-sex marriages, asking them to recognize these marriages for any couples that travel through or relocate in their states. (Full text of letter.) (Press release.) The letter asks the AGs to issue advisory opinions declaring that they will do so. Reuters reports that Human Rights Campaign yesterday also wrote U.S. Attorney General Eric Holder asking that the federal government extend recognition to these marriages so that the couples will be eligible for federal benefits due to married couples.

Utah Will Deny New Benefits To Same-Sex Couples While Appeals Are Pending

As previously reported, on Dec. 20 a federal district court in Utah struck down Utah's ban on same-sex marriage.  However on January 6 the U.S. Supreme Court temporarily stayed the district court's order while an appeal is working its way through the 10th Circuit.  This left Utah authorities to figure out the status of some 1000 same-sex couples who were married in the state between Dec. 20 and January 6.  Yesterday Utah Attorney General Sean Reyes issued an Official Statement on how those marriages will be treated for now:

... We are unable to reach a legal conclusion as to the ultimate validity of marriage  between persons of the same sex who completed their marriage ceremony in Utah between Dec 20, 2013 and Jan. 6, 2014. That question remains unanswered and the answer will depend on the result of the appeal process.

The Office of the Attorney General has advised the Governor in this case and will continue to work with the Governor and the individual agencies as they evaluate the application of specific policies and benefits within their agencies. A review team has been established to advise on a case-by-case basis.....

While the ultimate validity of such marriages is subject to the decision of a higher court, it is clear that the State is bound by law to limit any benefits attaching after the stay.

CNN reports that the governor's office has advised all state cabinet officials that "state recognition of same-sex marital status is ON HOLD until further notice."

Utah AG Studying Status of Same-Sex Marriages Already Performed In the State

Following yesterday's Supreme Court order that halts same-sex marriages in Utah while the appeal in Herbert v. Kitchen makes its way through the 10th Circuit, the status of same-sex couples who have married since the Dec. 20 district court decision allowing them is uncertain.  Yesterday the Utah Attorney General's Office issued an Official Statement  saying that it "is carefully evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally." It explained:

There is not clear legal precedence for this particular situation. This is the uncertainty that we were trying to avoid by asking the District Court for a stay immediately after its decision.  It is very unfortunate that so many Utah citizens have been put into this legal limbo.

Noah Feldman has an interesting discussion of the Supreme Court's action at Bloomberg Opinion.

Supreme Court Grants Stay Blocking Further Same-Sex Marriages In Utah While Appeal Is Pending

The U.S. Supreme Court this morning issued a stay (full text)  pending completion of a pending expedited appeal to the 10th Circuit in Herbert v. Kitchen, (Docket No. 13A687). In the case, a Utah federal district court issued an injunction allowing same-sex marriages in Utah. (See prior posting.) The application for a stay was initially made to Justice Sotomayor (see prior posting) who referred it to the full court. SCOTUSblog has more on the Supreme Court's action.

Unauthorized Class Action Sought Millions For Denial of Religious Freedom and Right To Marry By Utah and LDS Church

Last Friday, a class action was filed in federal district court in Utah against the state of Utah and the LDS Church on behalf of "all persons denied freedom of religion and the right to marry"-- at least 500 people according to the complaint.  The complaint (full text) in Winburn v. State of Utah, (D UT, filed Dec. 27, 2013), describes the LDS Church as "an entity of defendant State of Utah," and alleges violations of the Fair Debt Collection Act, the Utah Pattern of Unlawful Activity Act and intentional infliction of emotional distress. It seeks damages of at least $25,000 for each class member. Yesterday, the lead plaintiffs in the case filed a "Notice of Voluntary Dismissal" (full text). The plaintiffs, Pidge Winburn and Amy Fowler-- a same-sex couple who were married on Dec. 23 after a federal court invalidated Utah's ban on same-sex marriage-- say they did not authorize the lawsuit, never spoke to the attorney who filed it, and learned of it only through a phone call from a reporter.  Apparently attorney E. Craig Smay who filed the suit learned of Winburn and Fowler through a feature article about them in the Dec. 26 Salt Lake Tribune.  According to yesterday's Salt Lake Tribune, Fowler says she plans to file a formal bar complaint against the attorney.

Utah Seeks Stay From U.S. Supreme Court of District Court's Same-Sex Marriage Decision

As reported by Lyle Denniston at SCOTUSblog, yesterday the state of Utah filed an Application (full text) seeking an immediate stay pending appeal of the Dec. 20 federal district court decision in Kitchen v. Herbert which barred Utah from enforcing its ban on same-sex marriage.  The district court and 10th Circuit have both denied stays. As required by Supreme Court rule, the stay application was filed with Justice Sotomayor, the Justice assigned to the 10th Circuit.  Late yesterday afternoon, Justice Sotomayor asked for a response from respondents by noon on Friday.  It appears that Utah's governor and attorney general have retained an outside law firm to handle the attempt to obtain Supreme Court review.  A Boise, Idaho firm is listed as petitioners' counsel, with counsel of record being the firm's senior partner Monte Neil Stewart who was a law clerk for Chief Justice Warren Burger and is the founder of the Marriage Law Foundation.

Utah's application for a stay argues that it is likely that the district court will be reversed on appeal, and if that happens without a stay the state will be faced with the problem of whether and how to unwind the many marriages that will have occurred in the interim. AP reports on Utah's efforts.

Same-Sex Marriages Move Ahead In Utah As State Continues Seeking Stay

The Salt Lake Tribune reported yesterday on the flurry of motions being filed by the state of Utah seeking to obtain a stay of the federal district court's decision handed down Friday (see prior posting) legalizing same-sex marriage in the state. On Friday morning, the district court denied a stay, and the state quickly filed its third motion with the 10th Circuit seeking a stay while it appeals the district court ruling.  The 10th Circuit had previously denied an emergency stay pending a decision by the district court on granting a stay, as well as denying an anticipatory request to stay the expected district court's refusal of a stay. (Full text of order.)  Meanwhile, according to yesterday's Deseret News, approximately 700 same-sex marriage licenses have been issued across the state since Friday.  Some county clerks, however, are still refusing to issue same-sex licenses, and a lawsuit has been filed by a same-sex couple against the Utah County clerk's office to force them to issue a license.  Cache County officials closed the Clerk's office completely, stopping issuing traditional marriage licenses as well.

UPDATE: The Salt Lake Tribune reports that around 6 p.m., Dec. 24, the 10th Circuit again denied the state's motion for a stay of the district court's order. A spokesman for the Utah attorney general's office said that any county clerks that continue to refuse to issue licences to same-sex couples risk being held in contempt of court. Here is the full text of the order denying a stay during appeal, and which also directs expedited consideration of the appeal of the district court decision. ScotusBlog reports that Utah will file an appeal of the denial of a stay with the U.S. Supreme Court on Thursday.

Federal Court Strikes Down Utah's Ban On Same-Sex Marriage

Yesterday, a Utah federal district court declared Utah's state constitutional and statutory bans on same-sex marriage invalid under the due process and equal protection clauses of the federal constitution and enjoined the state from enforcing provisions of Utah law that prevent a person from marrying another person of the same sex. In Kitchen v. Herbert, (D UT, Dec. 20, 2013), the court said in part:

If, as is clear from the Supreme Court cases discussing the right to marry, a heterosexual person’s choices about intimate association and family life are protected from unreasonable government interference in the marital context, then a gay or lesbian person also enjoys these same protections. ... The Supreme Court’s decision in Lawrence removed the only ground—moral disapproval—on which the State could have at one time relied to distinguish the rights of gay and lesbian individuals from the rights of heterosexual individuals.

Moving to plaintiffs' equal protection challenge, the court held that none of the reasons put forward to justify the ban-- responsible procreation, optimal child rearing, proceeding with caution, preserving the traditional definition of marriage-- survive even "rational basis" review.

Utah's Attorney General quickly moved to stay the court's order, filing a motion (full text) in district court as well as a motion (full text) in the 10th Circuit.  The court's decision and plans for appeal are discussed at Scotus Blog, Christian Science Monitor, and the Salt Lake Tribune. An op-ed in the St. George (UT) News contrasts the quick appeal of the ruling with the still-uncertain reaction of state officials to a federal court decision last week invalidating a large part of Utah's law banning polygamy.

In Ogden, Weber County officials had originally announced the the county Clerk's office would be open for one hour today to process marriage license applications, but reversed that decision, turning away over 200 people in line.  According to the Salt Lake Tribune, county Clerk Ricky Hatch apologized to those waiting, and later explained that the decision not to open was made in part because there was no security in place for the building and in part because he was "advised that opening the office for 'special circumstances' may violate equal-protection laws, as the county had never before opened on a Saturday to accommodate a particular group or event."

Federal Court Strikes Down Most of Utah's Statute Banning Polygamy

In a ground-breaking decision in Brown v. Buhman, (D UT, Dec. 13, 2013), a Utah federal district court held that most of Utah's statute barring polygamy is unconstitutional.  Utah Code §76-7-101 provides:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

Plaintiffs, the polygamous family featured on the TLC reality series "Sister Wives," sued seeking a declaratory judgment that Utah's ban on plural marriage is unconstitutional. (See prior posting.) Plaintiffs are members of a religious group that believes polygamy is a core religious practice.  Federal district Judge Waddoups held that the portion of the statute barring cohabitation while married to someone else is unconstitutional as a violation of free exercise rights.  Concluding that in operation the ban is not applied neutrally, but is primarily used to target religious co-habitation, the court held that the ban is subject to strict scrutiny, and fails that test.  Judge Waddoups also concludes that the ban, under a rational basis review, violates plaintiffs' rights to be free from government interference in matters of consensual sexual privacy, and is void for vagueness. In ruling on this portion of the statute, the court said that it was not constrained by the U.S. Supreme Court's 1878 decision in Reynolds v. United States upholding the federal anti-bigamy statute because that decision dealt only with a ban on multiple marriages, not on cohabitation while married.

Nevertheless, Judge Waddoups wrote a lengthy and unusual critique of Reynolds,  analyzing it in terms of Prof. Edward Said's theory of "Orientalism."  The court said that the social harm from Mormon polygamy perceived by the Supreme Court in Reynolds was the introduction of "a practice perceived to be characteristic of non-European people—or non-white races—into white American society."

The district court also severely limited the application of the remaining ban in Utah's bigamy statute-- the ban on purporting to marry a third person while already married to someone else.  In a 2006 decision in State of Utah v. Holm (see prior posting), the majority of the Utah Supreme Court held that this statutory ban applies to polygamous marriages that are solemnized through religious ceremonies even when no state marriage license has been sought.  Judge Waddoups initially says that he is bound by the Utah Supreme Court's interpretation of the state bigamy statute.  However he appears to back off of this limitation when he faces the question of the constitutionality of the ban on purporting to marry. He says that this portion of the statute "raises the same constitutional concerns addressed in relation to the cohabitation prong...." and can be saved only by a narrowing construction.  He finds that in the views of the dissent in the Holm case:

the court agrees with Chief Justice Durham['s dissent] that the “purports to marry” prong should be interpreted “as referring to an individual’s claim of entry into a legal union recognized by the state as marriage. The phrase does not encompass an individual’s entry into a religious union where there has been no attempt to elicit the state’s recognition of marital status or to procure the attendant benefits of this status under the law, and where neither party to the union believed it to have legal import."

The Salt Lake Tribune reports on the decision. Orin Kerr and David Kopel both analyze the case at Volokh Conspiracy.