Matt Gade, Deseret News
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."
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