Same-sex marriage (SSM) in Utah:
Over 1000 same-sex couples marry
after federal court gives OK. State
obtains stay & refuses to recognize
marriages. Court decision appealed.
Federal District court orders state to
over 1000 marriages.
U.S. Court of Appeals upholds ruling.
2013 and 2014: Topics covered in this section:
There are a lot:
- Federal District court declares the 2004 amendment to the state constitution invalid and void.
- Reactions to the decision.
- Over 1,300 loving, committed same-sex couples rush to country clerks' office and obtain marriage licenses over 19 days.
- State repeatedly seeks a stay and finally gets one from the U.S. Supreme court.
- Utah refuses to recognize the over 1,000 same-sex marriages solemnized during the 19 day window when licenses were being distributed.
- Reactions to this decision
- Federal government, three states and the Utah State Tax Commission recognizes the marriages.
- A 3 judge panel of the U.S. 10th Circuit Court of Appeals hears the appeal.
- Possible future scenarios.
- Federal District ruling requires Utah state to recognize the over 1,000 same-sex marriages solemnized during the 19 day window.
- Utah Governor criticizes other states' Governors and District Attorneys who do not strongly resist marriage equality.
- LGBT group asks for apology from Governor for anti-gay comment.
- The 10th U.S. Court of Appeals upholds the District Court ruling and stays their decision.
Background of the situation in Utah:
If you thought that path to achieve marriage equality in New Mexico was chaotic, it looks as if the path in Utah will be much worse.
In 2004, voters in the State of Utah joined with voters in ten other states to amend their state constitutions to ban same-sex marriage. All of the amendments were passed with strong majorities. In the case of Utah, the vote was 66% vs 34% in favor of its Amendment 3. Since 2004, support for same-sex marriages has steadily risen nationally while opposition has declined. It is doubtful that Utah's amendment would pass if it were voted on in 2013, because it banned same-sex marriage, civil unions, and domestic partnerships. That is a position currently favored by only 29% of Utah voters. Also, support for SSM has risen to 48% according to a mid-2014-JAN poll, while opposition to SSM has dropped also to 48%. Meanwhile a very strong majority of voters currently favor civil unions for same-sex couples in spite of high levels of animus taught by the predominant Mormon faith in the state where about two-thirds of the population follow that religion.
There is unanimous agreement among constitutional experts that it is the responsibility of individual states to define who is eligible to be married. But there is a serious disagreement between many social and religious conservatives who oppose same-sex marriage, and religious liberals, secularists and others who generally support marriage equality:
- Many religious and social conservatives believe that any state constitutional amendments passed by the voters automatically become the law of the state. They appear to believe that the United States is a pure democracy, where the will of the voters is automatically binding, even if the voter's will conflicts with the civil liberties guaranteed by the federal Constitution.
- The vast majority of constitutional experts, religious and social liberals, historians, lawyers, educators, etc. believe that the United States is a constitutional democracy and that whatever amendments to the state Constitution that are passed by the voters are only binding if they do not conflict with the requirements of the federal Constitution. In case of a conflict, the amendment is unconstitutional and void. A major function of the federal court system is to decide if and where such conflict exists.
The founding fathers of the United States were concerned of the "tyranny of the majority." That is, if the U.S. were a pure democracy, then there were no limits to prevent the majority of voters from withholding basic human rights from disfavored minorities. So, they composed a strong Constitution containing a Bill of Rights that put limitations to basic human rights beyond the reach of both the legislators and voters. The United States became a constitutional democracy where the 14th Amendment to the federal constitution guarantees equal protection and treatment for all of its citizens.
"Kitchen et al v.
Herbert et al" -- a federal lawsuit seeking marriage for loving, committed same-sex couples in Utah:
On 2013-MAR-25, three same-sex couples filed a lawsuit in the United States District Court for the District of Utah. It is titled "Kitchen et al v.
Herbert et al". Two of the couples were seeking permission to marry in Utah. The third was already married in a different state and wanted Utah to recognize their existing marriage.
Hearings were held on 2013-DEC-04. A ruling was expected in late 2014-JAN. However, federal judge Robert J. Shelby of the U.S. District Court for Utah surprised everyone by issuing his 53 page ruling on DEC-20. He declared Amendment 3 to be unconstitutional. He reasoned that the amendment violates both the Due Process and Equal Protection clauses in the 14th Amendment of the U.S. Constitution. Thus, at least temporarily, Utah became the 18th state to have attained marriage equality. It was at this point that the Utah Government realized that they had made a very serious oversight: they had neglected to ask for the District Court to stay its ruling pending an appeal to a higher court. As a result, same-sex couples were able to obtain marriage licenses immediately. They converged on their county offices in large numbers, and obtained licenses. Many solemnized their marriages very quickly thereafter.
The state applied to appeal the case to the 10th U.S. Circuit Court of Appeals. They also launched four requests to obtain a stay on the lower court's ruling so that further same-sex marriages could be halted. These were all rejected. The District Court and Court of Appeals reasoned that marriage equality did not impact opposite-sex couples to any significant degree, whereas to stay the lower court's decision would immediately cause hardship to same-sex couples. The state finally requested a stay from the U.S. Supreme Court, which was granted on 2014-JAN-06.
This left over 1,300 married same-sex couple in a state of limbo. The state quickly decided that it would not recognize their marriages and would deny them access to the few hundred state benefits and protections that are automatically given to opposite-sex married couples. Meanwhile, the federal Justice department decided that the couples were legally married and made them eligible for access to the 1,138 federal benefits and protections that are given to same-sex and opposite-sex married couples.
The next step is for the U.S. Tenth Circuit Court of Appeals to consider the case and issue its own ruling. It has adopted an expedited schedule because of the importance of the case to the happiness and security of same-sex engaged couples and their children. A three-judge panel of the court will hold hearings in Denver, CO, starting on 2014-APR-10. Whatever their ruling is, the case will undoubtedly be appealed to the full court at a future date, and then to the U.S. Supreme Court.
The events in Utah once more demonstrate the importance for same-sex engaged couples to be ready to respond instantly to any opportunity to marry in their state. Previous windows of opportunity to marry in other states have been open only for a few hours. So, speed is of the essence.
Mid-2014: Current status of same-sex marriages in Utah:
The panel of judges on the Tenth Circuit Court of Appeals is expected to rule in the case sometime in the summer of 2014. Whatever their decision, it will be almost certain to be appealed to the full court.
The oath of office sworn to by Utah Governor Gary Herbert (R) and Attorney General Sean Reyes (R), is similar to those in other states. The oath require them to obey both the federal and Utah state constitutions. Unfortunately, the oaths typically do not give any indication of how both should act in the event that the two constitutions conflict. On the matter of same-sex marriage, the two Constitutions definitely do clash:
- Numerous District Court judges in various states, including Utah, have ruled on same-sex marriage since mid-2013. They independently reached a consensus that the due process clause and/or the equal protection clause of the 14th Amendment to the federal Constitution requires states to allow same-sex couples to marry.
- However, the Utah Constitution was amended in 2004 by popular vote to clearly and unambiguously prohibit same-sex couples from marrying.
Herbert and Reyes are in a difficult position. There is no action that they can take without violating one Constitution. They have both chosen to ignore their sworn obligation to uphold the U.S. Constitution and have vowed to work on supporting the same-sex marriage ban in the state Constitution. This position is consistent both with their Mormon faith and their Republican Party affiliation.
Links to essays describing events in Utah:
- During 2014-JAN:
- From 2014-FEB to now:
Copyright © 2013 & 2014 by Ontario Consultants on Religious
Originally written: 2013-DEC-22
Latest update: 2013-JUN-25
Author: B.A. Robinson