SALT LAKE CITY -- Utah will not recognize more than a thousand same-sex marriages performed within the state, pending an appeal of its constitutional amendment that defines marriage as only between a man and a woman.
Utah Attorney General Sean Reyes issued a legal opinion to the governor, saying he was unable to reach a conclusion about the validity of the marriages. However, the state will not recognize the marriages, either.
"I want to be clear that we are not saying those marriages are invalid," Reyes said in an interview Wednesday with FOX 13. "However, as a state we cannot recognize those marriages."
Reyes insisted that by refusing to recognize the marriages, the state was not effectively invalidating the unions by pointing to other states that recognize same-sex marriages.
"It's not invalidating it in the same way that if they went to Hawaii, they could potentially apply for benefits there based on the marriage that took place. They can't be recognized (here)," he said. "There is a very fine distinction, but a very important distinction based on those two things."
In an email sent to state cabinet members, Governor Gary Herbert's office declared state recognition of same-sex marital status "on hold" until further notice.
Governor's chief-of-staff Derek Miller acknowledged Utah basically would not recognize the estimated 1,360 same-sex marriages performed in the state when it came to offering state services and benefits.
"The challenge that we're faced with is that although there were marriages that were performed under the color of law based on Judge Shelby's decision, now that the Supreme Court has put a stay on that decision, the laws that existed before Judge Shelby's decision are now back in effect," Miller told FOX 13. "And that law says specifically the state shall not recognize a same-sex marriage."
On Dec. 20, U.S. District Court Judge Robert Shelby declared the constitutional amendment -- which defines marriage as between a a man and a woman -- unconstitutional and violating same-sex couples' rights to due process and equal protection under the U.S. Constitution.
The U.S. Supreme Court on Monday issued a stay, halting further marriages until the issue is settled by the appeals court. The governor's office says that means Amendment 3 is back in effect, thus forcing the state to not recognize the unions.
Because of the "on hold" nature of the legal opinion, the state would recognize name changes in driver licenses or joint tax returns that had been filed between Dec. 20 and Jan. 6. However, anything else will not be recognized.
Chris Caras, the director of Utah's Driver License Division told FOX 13 they did grant name changes to couples who sought them. It was under the direction of Governor Herbert, who ordered state agencies to offer services after Amendment 3 was overturned by Judge Shelby.
"There was a period of time between the court rulings when we were accepting them," Caras said. "As we were advised at that time. As of last night, we were advised to return to our original policy."
In a statement to FOX 13, Peggy Tomsic, an attorney representing the three gay couples who sued over Amendment 3, called the governor's decision "unprecedented."
"This unprecedented and disappointing action harms not only my clients, but hundreds of other same-sex couples who also were legally married, and whose families have been needlessly destabilized and stripped of basic legal protection," she wrote.
"By taking this unwarranted action, the State of Utah has discounted the lives of thousands of Utah citizens who live, work, and raise their families in Utah and pay Utah and federal taxes like all other Utah citizens. Regardless of how the State believes the Tenth Circuit will ultimately rule, these couples are legally married, and the State should treat them accordingly."
In her statement, Tomsic told same-sex couples married in Utah to contact a lawyer with questions about their legal status.
ACLU of Utah Legal Director John Mejia told FOX 13 they were "very seriously considering" a lawsuit against the state for refusing to recognize the marriages. Late Wednesday, the ACLU asked for people who felt they had been harmed by the state's decision to contact them to become plaintiffs in the case.
Asked about the threat of litigation, Miller blamed the courts for not issuing a stay in the first place.
"This is the very chaos the state sought to avoid," he told FOX 13.
Michael Ferguson and Seth Anderson, the first same-sex couple to be married in Utah, called the state's decision "frustrating."
"This is part of why it's so frustrating being a second-class citizen in your own state," said Ferguson.
Here is Miller's email to Utah state agencies:
I'm sure you are all aware of the issuance of the stay regarding same-sex marriage in Utah from the United States Supreme Court yesterday. This stay effectively puts a hold on the decision of the district court, which found state laws prohibiting same-sex marriage in Utah to be unconstitutional.
After the district court decision was issued on Friday, December 20th, some same-sex couples availed themselves of the opportunity to marry and to the status granted by the state to married persons. This office sent an email to each of you soon after the district court decision, directing compliance.
With the district court injunction now stayed, the original laws governing marriage in Utah return to effect pending final resolution by the courts. It is important to understand that those laws include not only a prohibition of performing same-sex marriages but also recognizing same-sex marriages.
Based on counsel from the Attorney General's Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.
Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.
We appreciate your patience and diligence in this matter. We recognize that different state agencies have specific questions and circumstances that will need to be worked through. Please do so with the Assistant Attorney General assigned to your respective agency in coordination with the Governor’s General Counsel. We also recognize that these changes affect real people’s lives. Let us carefully and considerately ensure that we, and our employees throughout the state, continue to treat all people with respect and understanding as we assist them.
Derek B. Miller
Chief of Staff
State of Utah