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State wants Utah Supreme Court to intervene in gay marriage recognition case

Published: Saturday, April 26 2014 7:44 p.m. MDT

Utah Attorney General Sean Reyes holds a press conference at the Capitol in Salt Lake City, Monday, Jan. 6, 2014 following the U.S. Supreme Court decision to grant a stay on the Herbert et al v. Kitchen et al same sex marriage case.

Ravell Call, Deseret News Archives

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SALT LAKE CITY — The Utah Attorney General's Office wants the Utah Supreme Court to decide whether same-sex couples who married in the state should receive the legal benefits associated with marriage.

Plaintiffs in a federal lawsuit seeking recognition of their marriages have continued to pursue petitions in state court to adopt children, arguing that their marriage licenses allow them to move forward.

But attorneys for the state want U.S. District Judge Dale Kimball to ask the Utah Supreme Court to determine if same-sex couples who married between Dec. 20, 2013, and Jan. 6, 2014, have vested property rights that require recognition under current state law.

"To ensure consistency and in the interests of judicial efficiency, a certification of the question involving the rights vested in state law is now warranted," the state contends.

Some state court judges have granted adoption petitions to same-sex couples, while others have not. Two judges also issued orders that would require the state health department to provide updated birth certificates for the children.

The attorney general's office earlier petitioned the Utah Court of Appeals to halt same-sex adoptions as it appeals a federal judge's ruling that overturned the state's voter-approved constitutional definition of marriage as between one man and one woman.

Four same-sex couples married in Utah between the time that Judge Robert J. Shelby struck down the state's ban on gay marriage and when the U.S. Supreme Court stayed that ruling are suing to have their marriages recognized. One couple, Matthew Barraza and Tony Milner, was granted a petition in state court to allow Milner to adopt Barazza's son.

Attorneys for the couples say the state is "manufacturing standing" to challenge several families' adoption petitions and trying to "manipulate" the federal court to transfer jurisdiction to the Utah Supreme Court.

"In light of defendants' ever-expanding power to flout the litigation process, it is imperative that the (federal) court make clear that … stripping recognition from the legal marriages of plaintiffs and other same-sex couples violates their vested rights and liberty interests under the federal Constitution," they wrote in court documents.

The state had the chance to intervene in the adoption cases of Barraza and Milner and other same-sex couples but declined to do so and is now barred from "collaterally attacking" the completed adoptions, according to the plaintiffs' attorneys.

In a court filing late Friday, the state reiterated its position that the question of marriage rights should be decided at the Utah Supreme Court due to the possibility of conflicting decisions.

"If this court rules that there is a likelihood of success on the issue of whether same-sex couples have vested rights in their marriage licenses, but the Utah Supreme Court rules that no vested rights exist, the executive agencies of Utah would be faced with contradictory court rulings," the state argued.

Utah contends that would expand the cloud of uncertainty hanging over residents and state government.

Email: romboy@deseretnews.com,

Twitter: dennisromboy; DNewsPolitics

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