The ability of a state to govern itself has always been the hallmark of a democracy. As regards the marriage laws of Utah, the elected officials in the state must deal with the challenges created by an overreaching decision made by a single U.S. district court judge.
On Dec. 20, a district court judge struck down the Utah constitution's definition of marriage as between a man and a woman. Monday of this week -- — 17 days later — the U.S. Supreme Court appropriately stayed that order.
Now, Gov. Gary Herbert and Attorney General Sean Reyes have the challenge of ensuring that the state's administration of the law is fair to all persons, while also ensuring that Utah's democratically chosen values are preserved and not prejudiced.
In particular, we applaud Herbert and Reyes for noting, in a Wednesday memo to cabinet members: "It is important to understand that those laws include not only a prohibition on performing same-sex marriages but also recognizing same-sex marriages."
A one-time act, like the changing of a name and re-issuance of a driver's license, would not be retroactively undone. However, a same-sex couple could not claim access to ongoing governmental benefits, such as the ability to jointly file to pay state taxes.
This is fair to the individuals whose lives would be affected by “undoing” a past act like a name-change. But it is also necessary for the state to defend its democratic laws as this matter proceeds toward the 10th Circuit Court of Appeals.
Separately, U.S. Attorney General Eric Holder announced Friday that these marriages will be recognized as legal for purposes of federal law. This does not alter the state’s interest in defending its laws and processes.
On Thursday, Reyes reiterated the governor’s important position protecting Utah's laws. "The State of Utah cannot currently legally recognize marriages other than those between a man and a woman," he wrote, even though about 1,300 same-sex marriages took place in Utah between Dec. 20 and Jan. 6.
Reyes took the common-sense view that if between those dates a marriage license had been issued, and a ceremony had been performed, then a county clerk's office should indeed issue a certificate of that fact.
However, it is important not to get lost in legal details. Utah has long valued its independence, as well as the extraordinary social and economic results that stem from a deep-seated support of the traditional family.
Utah's historic opportunity is to stand up for democracy, and for a Constitution of delegated and enumerated powers. Under that Constitution, states are permitted to democratically enact laws that strengthen the family and promote the benefits of gender complementarity in marriage policy.
Laws regarding marriage and divorce have always varied from state to state. Currently, 17 states and the District of Columbia recognize same-sex marriage, but 33 states do not. Democracy should be the preferred method of peacefully resolving political controversies when attitudes about marriage differ from state to state under our federal constitution.
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