I’m not sure what other option the governor had. I think the governor is just doing what he has to do in the situation, which is to admit the situation caused by Judge Shelby not staying the ruling has created legal confusion that’s going to take time to settle. – Bill Duncan, Sutherland Institute and Marriage Law Foundation
SALT LAKE CITY — State recognition of Utah's same-sex newlyweds is on hold based on counsel from the Utah Attorney General's Office, Gov. Gary Herbert's chief of staff said Wednesday in a memo to state officials.
"Please understand this position is not intended to comment on the legal status of those same-sex marriages — that is for the courts to decide," Derek Miller wrote in the memo to members of the governor's cabinet.
Attorney General Sean Reyes issued an opinion to the governor's office as a result of the stay issued Monday by the U.S. Supreme Court of federal Judge Robert Shelby's ruling striking down Utah's voter-approved constitutional amendment defining marriage as between one man and one woman.
Utah is appealing Shelby's ruling on Amendment 3 to the 10th Circuit Court of Appeals.
Peggy Tomsic, an attorney for the plaintiffs in the case, called the state's position on the status of same-sex couples "unprecedented and disappointing" and said the state "has discounted the lives of thousands of Utah citizens who live, work and raise their families in Utah and pay Utah and federal taxes, like all other Utah citizens."
Reyes said his office was not making a determination about the validity of the same-sex marriages performed in Utah between Shelby's Dec. 20 ruling and Monday's Supreme Court stay.
"But it's very clear we cannot recognize those marriages under the plain language of Amendment 3," the newly appointed attorney general said.
The opinion came after examining the question of how to treat the marriages "very closely and very carefully with some of our best legal minds," Reyes said, adding that he recognizes the opinion's impact.
"This is such an important issue and such a personal one to so many Utah citizens," Reyes said. "I understand why many people could be upset. But I don't have leave to make decisions based on emotions."
Miller said Utah would not seek to revoke state services already received by same-sex couples — such as those who changed their names on drivers' licenses or have already filed a joint tax return — but those services are now no longer available as a result of the stay.
The Utah State Tax Commission canceled a meeting scheduled for Thursday to determine how to treat same-sex couples married in Utah on their state income tax filings.
Both Reyes and Miller said the state had hoped Shelby would have issued a stay at the time of his ruling to avoid this situation. The district court judge and the 10th Circuit rejected multiple requests for a stay before the state went to the U.S. Supreme Court.
"That's the reason we were so disappointed the stay wasn't issued immediately — we recognized this was going to be disruptive to people's lives," Miller said. "Disruptive isn't even a good enough word for it."
Bill Duncan, director for family and society at the Sutherland Institute, a conservative think tank, said the governor had no choice but to acknowledge the confusion surrounding the status of the same-sex couples.
"I'm not sure what other option the governor had," said Duncan, who is also head of the Utah-based Marriage Law Foundation. "I think the governor is just doing what he has to do in the situation, which is to admit the situation caused by Judge Shelby not staying the ruling has created legal confusion that's going to take time to settle."
But Clifford Rosky, board chairman of Equality Utah, an organization that fights for gay rights, said the state is taking the unprecedented step of "taking back" valid marriages that were "authorized by a federal court and solemnized in accordance with Utah law."
Rosky said state officials had the discretion to recognize the marriages during the appeals process but instead chose to hurt the families involved.
"It is a blow not only to these married couples, but to all of the children and adults who love them and depend on them," he said.
Salt Lake residents Seth Anderson and Michael Ferguson, the first same-sex couple to marry in Utah, said the state's decision not to recognize their union is frustrating but it could help their cause.
"I think in the long run, it's good for marriage equality nationally because this proves the state has animus towards LGBT (lesbian, gay, bisexual and transgender) citizens and the rule of law," Anderson said.
"I was legally married in the state of Utah along with over 1,000 other couples that have now been told, 'We're not going to recognize it. We don't have to,' and they do," he said. "We'll continue to go forward and fight for our rights."
State Democratic Party Chairman Jim Dabakis, who married his longtime partner, Stephen Justesen, the same day as Shelby's ruling, said he was "really, really disappointed" in the governor's action.
"This is our lives. This is a big moment," Dabakis, a state senator, said. "For the governor to arbitrarily decide to issue an order that ends, exterminates the marriages of so many loving people, it seems to me it's not very humane."
Brigham Young University law professor Lynn Wardle called the state's hold a "very reasonable approach. It's not the only approach that could be taken to this very difficult dilemma."
Wardle said it underscores how inappropriate it was for Shelby and the 10th Circuit to refuse to stay the ruling during Utah's appeal.
It’s also a complex issue because same-sex couples took advantage of the window to get married but the decision allowing that could be overturned, he said.
"What is the effect of those marriages? That is a very tough legal question. There are good arguments on both sides," Wardle said. "I would simply say that Gov. Herbert has made a very courageous decision."
University of Utah law professor Paul Cassell, a former federal judge, said that "as a legal matter, the state's position is correct." The stay issued by the Supreme Court, he said, means that the law in Utah reverts back to where it was before Shelby's ruling.
It's easier for the state to not recognize same-sex marriages going forward than going backward and invalidating them, Cassell said.
He also said the state's directive would be the last word on the issue for only the next two or three months when the 10th Circuit Court of Appeals is expected to either reverse or affirm Shelby's ruling.
Utah Eagle Forum leader Gayle Ruzicka said the state did the right thing.
"Until this issue is settled they should all be on hold. They should not be recognizing (same-sex) marriages. It's just going to confuse people and create a situation that will be hard to undo," she said.
Earlier this week, Ruzicka said the marriages should be "summarily invalidated."
"As long as they're on hold, they'll be invalidated when the Supreme Court strikes the judge's decision down," she said Wednesday.
The American Civil Liberties Union of Utah sent a letter to Reyes prior to his opinion being issued describing the same-sex marriages in Utah as valid and enforceable.
In a statement, the ACLU said: "It is clear that the moment these couples were married, they obtained vested rights that cannot be retroactively invalidated by Utah."
John Mejia, ACLU legal director, said it's too soon to talk about suing the state.
"I think it's premature to say we would be threatening anything but it is something we would consider," Mejia said. "I think they have it exactly wrong."
Yet later Wednesday, the ACLU of Utah tweeted that it is seeking plaintiffs in a suit to protect the rights of same-sex couples married in Utah.
Contributing: Richard Piatt, Keith McCord