SALT LAKE CITY — The Utah Attorney General’s Office is preparing a legal opinion on whether the state should recognize same-sex marriages performed in the state before the Supreme Court halted them.
The opinion, which is expected to be presented to Governor Gary Herbert on Wednesday, will determine if the state provides services to legally wed same-sex couples pending the appeal.
The U.S. Supreme Court’s decision to stay same-sex marriages in Utah pending an appeal of Amendment 3 has placed hundreds of couples in a legal gray area. After the Dec. 20 decision declaring it unconstitutional, Governor Gary Herbert directed state agencies to offer services in compliance with a federal judge’s order.
But now that the Supreme Court justices have stayed the request, many agencies are wondering if they still must comply.
“Many couples are calling me wondering if they’re still married and wondering what the legal implications are for their tax returns,” said Clifford Rosky, a University of Utah law professor and chairman of the board of the gay rights group Equality Utah. “Some of them have already begun adoption proceedings and they don’t know whether to go forward. It’s a complicated and stressful situation for more than 1,000 families.”
Since Utah’s constitutional amendment defining marriage as between a man and a woman was overturned, a FOX 13 survey of county clerks statewide found approximately 1,360 same-sex couples have wed.
In court filings, the state has sought to invalidate the marriages should it prevail on appeal. On Tuesday, some state agencies sought advice from the governor’s office on whether to offer services despite the stay.
The Utah State Tax Commission is meeting Thursday to decide if legally wed same-sex couples can file joint tax returns in the state. The IRS is allowing it on a federal level, but Utah’s Amendment 3 defines marriage as between a man and a woman and does not recognize anything else.
State tax commission spokesman Charlie Roberts said the agency was urging people to wait.
“You’re unable to file your federal taxes until January 31 anyway, so we just ask that, even though it’s an inconvenience, you hang tight,” he said.
Some attorneys have said that if Utah attempts to declare the marriages invalid, it could trigger a new round of litigation against the state.
Meanwhile, Utah was moving ahead with its appeal of Judge Robert Shelby’s decision declaring Amendment 3 unconstitutional. The attorney general’s office had a deadline Tuesday night for law firms to bid to represent Utah in the appeals process. That deadline was extended to January 14 “to increase competition,” spokeswoman Missy Larsen told FOX 13.
She would not say how many firms had applied, but said a committee would meet to select the outside counsel.
The state has suggested it would spend as much as $2 million to defend Amendment 3 before the 10th Circuit Court of Appeals, and, possibly, the U.S. Supreme Court.