Tangled court cases have impact on Utah's same-sex couples

Published: Thursday, May 22 2014 6:33 p.m. MDT

New rulings are part of a complicated series of separate but tangled court cases that have not reached a conclusion, but which have very human impacts.

Jordan Allred, Deseret News

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SALT LAKE CITY — Tony Milner and Matthew Barraza cautiously celebrated a federal court ruling this week that requires the state to recognize their marriage.

Last week, they were feeling low after the Utah Supreme Court stayed the second-parent adoption of their 5-year-old son that a 3rd District judge had finalized in March.

"We knew going into this that this was going to be a long fight with a lot of ups and downs," Milner said this week.

The court rulings are part of a complicated series of separate but tangled court cases that have not reached a conclusion, but which have very human impacts. Same-sex marriage related questions are being argued at several levels of state and federal court, which are hard to follow without a scorecard.

Milner and Barraza are among four gay and lesbian couples who wed during the 17 days it was legal in Utah and then sued that state to have their marriages recognized after the governor's office put same-sex nuptials on hold.

U.S. District Judge Dale Kimball ruled Monday that Utah must recognize the same-sex marriages performed in the state from Dec. 20 to Jan. 6. He stayed his decision for 21 days to give the state time to decide whether to appeal.

Kimball found the state had placed married same-sex couples in legal limbo regarding adoptions, child care and custody, medical decisions, employment and health benefits, future tax implications, inheritance, and many other property and fundamental rights associated with marriage.

"These legal uncertainties and lost rights cause harm each day that the marriage is not recognized," he wrote. The Utah Attorney General's Office said it has not decided whether to appeal or when it would make a decision.

That leaves the 1,300 newly married same-sex couples in Utah — including some like Milner and Barraza who are trying to adopt children — living in houses of uncertainty.

"To those individuals who got married under lawful authority, this is not theoretical to them. This is very real to them," said Salt Lake County District Attorney Sim Gill. "We're talking about individuals with absolute, vested concerns here."

Bill Duncan, Sutherland Institute director of the Center for Family and Society, said the various court rulings perpetuate uncertainty regardless of people's beliefs about marriage.

"Obviously, different sides of the issue are going to say the uncertainty is either because of Judge (Robert) Shelby or Judge Kimball or because of the state of Utah or the voters," he said. "But I think everybody has to admit there is real uncertainty that causes challenges for real people in their lives."

Kimball made it clear that his decision only pertains to Utah recognizing same-sex marriages performed in the state. It was not about whether the Constitution should allow for same-sex marriage or whether his colleague, U.S. District Judge Robert Shelby, was correct in overturning Utah's Amendment 3 that defines marriage as between a man and a woman.

That question rests with the 10th Circuit Court of Appeals in a separate case with different plaintiffs. A three-judge panel has reviewed hundreds of pages of written arguments and heard oral arguments on April 10. A decision is expected in the coming weeks.

Meantime, the Utah Supreme Court has intervened in cases involving same-sex adoptions.

At least two state court judges have granted adoptions to gay and lesbian couples who were married during the 17-day window in late December and early January. But the attorney general's office advised the health department not to amend the children's birth certificates to reflect the adoptive parent.

Milner and Barraza have been together for 11 years. Barraza, an attorney, adopted their son in 2009. The two men married Dec. 20 in the Holladay United Church of Christ. Six days later, Milner petitioned the court to become an adoptive parent. Third District Judge Andrew Stone finalized the adoption March 26.

Reyes asked the state 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 court last Friday stayed the judges' orders to the health department requiring the issuance of birth certificates in same-sex parent adoptions.

Those adoptions hinge on whether the parents' marriages are valid.

Duncan said it could result in a situation where the Utah Supreme Court says something different than Kimball on that issue.

"That will be yet another fascinating drama that would be ongoing," he said.

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

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