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Utah grappling with legal status of married same-sex couples

Published: Thursday, July 30 2015 2:24 a.m. MDT

Couples wait to get marriage licenses at the Salt Lake County clerk's office on Monday, Dec. 23, 2013, after the 10th Circuit Court of Appeals in Denver on Sunday denied a stay of a federal judge's ruling allowing for same-sex marriage in Utah pending a hearing Monday morning.  (Ravell Call, Deseret News) Couples wait to get marriage licenses at the Salt Lake County clerk's office on Monday, Dec. 23, 2013, after the 10th Circuit Court of Appeals in Denver on Sunday denied a stay of a federal judge's ruling allowing for same-sex marriage in Utah pending a hearing Monday morning. (Ravell Call, Deseret News)

SALT LAKE CITY — Same-sex couples who have marriage licenses but didn't wed before Monday morning can't legally do so now, according to the Salt Lake County district attorney.

And the legal status of those who did get married during the 17 days it was legal in Utah is unsettled as state and county officials figure out how to deal with the impact of the U.S. Supreme Court order that halted gay marriage in the state.

New Utah Attorney General Sean Reyes couldn't answer that question Monday but described married gay and lesbian couples as being in "legal limbo."

Reyes is expected to provide an opinion on the legal status of those couples to Gov. Gary Herbert on Wednesday, said Missy Larsen, attorney general's office spokeswoman. It will address how Utah should handle matters such as filing state income tax returns.

Couples wait to get marriage licenses at the Salt Lake County clerk's office on Monday, Dec. 23, 2013, after the 10th Circuit Court of Appeals in Denver on Sunday denied a stay of a federal judge's ruling allowing for same-sex marriage in Utah pending a hearing Monday morning.  (Ravell Call, Deseret News) Couples wait to get marriage licenses at the Salt Lake County clerk's office on Monday, Dec. 23, 2013, after the 10th Circuit Court of Appeals in Denver on Sunday denied a stay of a federal judge's ruling allowing for same-sex marriage in Utah pending a hearing Monday morning. (Ravell Call, Deseret News)

Meanwhile, the attorney general's search for an outside law firm to handle the state's appeal of the federal court ruling that allowed same-sex marriages in Utah has been extended for one week because the office received a "low number" of bids, assistant attorney general Alan Bachman said.

That would give the incoming attorneys less than two weeks to meet the 10th Circuit Court of Appeals' Jan. 27 deadline to file initial arguments in the case. Reyes estimates the state could spend as much as $2 million on outside counsel.

The unresolved legal questions arose when U.S. District Judge Robert J. Shelby on Dec. 20 struck down Utah's voter-approved definition of marriage as between a man and a woman.

Diana Smith fills out a marriage license on the back of Karen Brinkerhoff outside the county clerks office after a federal judge ruled that Amendment 3, Utah's same-sex marriage ban is unconstitutional on Friday, December 20, 2013.  (Matt Gade, Deseret News) Diana Smith fills out a marriage license on the back of Karen Brinkerhoff outside the county clerks office after a federal judge ruled that Amendment 3, Utah's same-sex marriage ban is unconstitutional on Friday, December 20, 2013. (Matt Gade, Deseret News)

Jeremy Cunningham and his partner rushed to the Salt Lake County Clerk's Office to get a marriage license within hours of a federal court ruling last month that allowed them to become husband and husband.

The two Salt Lake men paid $40 for the license but didn't grab one of the ministers or others performing weddings on the spot. And they didn't marry during the next 17 days.

"We were waiting to organize a wedding, so we have our license but we no longer have a marriage date," Cunningham said.

The couple are among a number of Utahns who obtained licenses but didn't get married before Monday's high court order. The order will stay in place while the state appeals Shelby's decision.

"We're left in limbo," Cunningham said.

The county clerk's office received telephone calls the past two days from clergy wondering if they could still conduct weddings for gay couples who have marriage licenses, which expire 30 days after they were issued.

Salt Lake County District Attorney Sim Gill said the county has told ministers they can do what they want, but the law reverts back to the "pre-Shelby universe."

"If you couldn't perform it then, you can't perform it now regardless of whether you have a license or not because the stay takes the legal effect away from that," he said.

Gill said the ceremony would violate the state constitution and state law, which makes it a class A misdemeanor to solemnize a marriage between same-sex couples.

Less settled is the status of same-sex couples who were married before the stay.

Gill said that will ultimately have to be decided, but the marriages were lawful at the time they were performed.

"I can't really give legal advice on that. That's something that's going to have to be addressed and determined," he said.

"The attorney general is trying to figure that out, but it's going to be just as germane to county attorneys and different folks as well, because what do you do with those individuals if they're asking for benefits and other kinds of legal things that take effect?"

Utah County Clerk Bryan Thompson initially refused to issue marriage licenses to same-sex couples for nearly a week after Shelby's ruling, partly because he said he didn't know where they would stand if a stay were granted.

"That was one of my concerns to hold out from the beginning," he said. "That put a lot of people in limbo."

Thompson said he doesn't know how many licenses were issued or recorded in Utah County because he hasn't kept track.

Salt Lake County Clerk Sherrie Swensen estimates her office issued about 800 marriage licenses to same-sex couples. She said she didn't know how many of them were married because her clerks haven't had time to record the information.

"It's a little crazy around here," she said. "It's been a bit of a roller coaster for the staff. We're doing the best we can."

One thing Swensen said she wants to do is offer refunds to same-sex couples who bought marriage licenses but didn't get married. She said that would be the fair thing to do, but she's waiting for legal advice on whether she could do it.

The attorney general's office announced Dec. 31 that bids for outside counsel were being sought, but a day earlier, Reyes' chief deputy, Brian Tarbet, said the office was "working through" the procurement process to hire a firm he declined to name.

"The reality was they wanted to do this right, so they put a formal bid process in place," Larsen said. "Had they just wanted to secure a firm to go forward with this, they could have done so legally."

It's not clear whether the firm the office initially wanted to hire submitted a bid. Bachman, the assistant attorney general, declined to provide details of the bids received, including how many law firms wanted the work.

"It's a low number," Bachman said. "It doesn't mean we didn't get something qualified in there, either. But frankly, we want to have competition."

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