Federal judge orders recognition of same-sex marriages performed in Utah

Published: Monday, May 19 2014 4:10 p.m. MDT

About two weeks later, Donald Johnson and Carl Fritz Shultz, Matthew Barraza and Tony Milner, JoNell Evans and Stacia Ireland, and Elenor Heyborne and Marina Gomberg sued the state to have their marriages recognized. All were married in Utah between Dec. 20 and Jan. 6.

In the lawsuit, the couples asked Kimball to order the state to immediately recognize the marriages.

"In this case, plaintiffs solemnized legally valid marriages under Utah law as it existed at the time of such solemnization. At that time, the state granted plaintiffs all the substantive due process and liberty protections of any other marriage," the judge wrote in the decision.

Kimball wrote that the state can't now undo those marriages, regardless of Amendment 3.

State Sen. Jim Dabakis, Utah's only openly gay legislator who married his longtime partner Dec. 20, praised the decision.

"As the only member of the Utah Senate whose spouse is refused state health care benefits, resulting from Gov. Herbert's order putting all legal, same-sex Utah marriages 'on hold,' I applaud Judge Kimball's decision," he said in a statement.

The Salt Lake Democrat also urged the governor to withdraw the hold affecting dozens of state employees, as well as hundreds of other married Utah couples.

Duncan said Kimball's ruling is wrongly premised on the idea that the law changed when Shelby declined to stay his own ruling in December.

"The Constitution didn't change for 17 days to require same-sex marriage while the state was waiting for a stay. It either required that or it didn't. We don't have a final answer on that question. It's not unreasonable for the state to say we're waiting to see what the law requires of us," he said.

Lawyers for the couples argued in court in March that the state's move to undo the marriages deprives them of rights, strips them of dignity and leaves them humiliated.

"The fact is these people are legally married," attorney Erik Strindberg said during the hearing.

Assistant attorney general Joni Jones said in the hearing that the state is not trying to void the marriages but is withholding recognition until after the 10th Circuit rules on the state's appeal of Shelby's decision.

But Jones said the unions would be void if Shelby's ruling is overturned because it would be based on an "erroneous" law.

"There's no question this is an emotional issue. But the state is constantly trying to take a position to respect their rights and respect the legal process," she said.

In his ruling, Kimball also denied the plaintiffs' and the state's requests to allow the Utah Supreme Court to decide whether same-sex couples who married in Utah should receive the legal benefits of marriage.

The state's high court, however, could still weigh in on a same-sex adoption case that hinges on whether the parents' marriage is valid.

Kimberly and Amber Leary married and petitioned for an adoption during the time same-sex marriage was legal in Utah. They had spent three years planning for their daughter, who was born to Amber Leary and is now 18 months old.

Third District Judge Andrew Stone finalized the adoption on March 26, making them the legal parents of the child. But when the Learys asked the health department to amend the birth certificate with both their names, it refused on the advice of the attorney general's office.

Reyes asked the Utah Supreme Court to decide whether the state can abide the adoption decree and not run afoul of the state law banning same-sex marriage.

The state's high court intervened last Friday and asked both sides to prepare for written and oral arguments.

The various court rulings put same-sex parents on an emotional roller coaster, said Cliff Rosky, a University of Utah law professor and Equality Utah board member who speaks for the Learys.

"It's hard to imagine a more high-stakes question," he said. "The roller coaster is today we're married. Today we're your parents. Tomorrow we're not. The kids are on the roller coaster too, and it's not fun."

Email: romboy@deseretnews.com, Twitter: dennisromboy; DNewsPolitics

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