Utah wants same-sex marriage case kicked over to state Supreme Court

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SALT LAKE CITY — The Utah Attorney General’s Office wants a federal judge to kick a same-sex marriage case to the state’s supreme court before deciding if Utah should recognize more than 1,200 marriages performed here.

In a filing late Friday in U.S. District Court, the state asked Judge Dale Kimball to move part of the case to the Utah Supreme Court. They argue that one of the couples is in the midst of an adoption case, which the Utah Attorney General’s Office is already dealing with in state court.

Read the filing here

The lawsuit, originally filed in West Jordan’s 3rd District Court, was moved to federal court at the request of the Utah Attorney General’s Office. In the Friday filing, the state denies claims by the plaintiffs that they are “manufacturing standing” and “flouting the litigation process.”

Four couples and the ACLU of Utah are suing the state for refusing to recognize legal same-sex marriages performed after U.S. District Court Judge Robert Shelby overturned the state’s ban on same-sex marriage, Amendment 3. Gov. Gary Herbert initially ordered state agencies to provide benefits and services to married same-sex couples, then reversed the position after the U.S. Supreme Court halted the marriages pending an appeal of Amendment 3.

The 10th U.S. Circuit Court of Appeals in Denver recently heard arguments about the constitutionality of Amendment 3.

The Utah Attorney General’s Office insists that with the stay in place, Amendment 3 remains the law of the land, and same-sex marriages performed in the state cannot be recognized. An analysis of marriage records by FOX 13 revealed 1,259 same-sex couples wed in Utah for the 17 days it was legal before the stay was granted.

Amendment 3 defines marriage as between a man and a woman and does not recognize anything else.

The state has come under heavy criticism after it intervened in some adoption cases involving married same-sex couples. Attorneys for those couples have claimed that judges ordered the adoptions completed before the U.S. Supreme Court stay, only to have the state jump into the middle of the cases and have those adoptions halted.

The Utah Attorney General’s Office recently asked the Utah Supreme Court to weigh in, which they reiterated in the Friday filing in federal court.

“This was not a litigation strategy, but the only reasonable course of action the Department could take, being caught between contempt sanctions on one hand, and the apparent violation of the plain text of Utah law on the other,” assistant Utah Attorney General Kyle Kaiser wrote.

The Utah Attorney General’s Office urged Judge Kimball to wait until the Utah Supreme Court rules on the adoptions before deciding if the same-sex marriages performed in Utah should be recognized.

“If this Court rules that there is a likelihood of success on the issue of whether same-sex couples have vested rights in their marriage licenses, but the Utah Supreme Court rules that no vested rights exist, the executive agencies of Utah would be faced with contradictory court rulings,” Kaiser wrote.

“This scenario—or even the possibility thereof—would ‘dramatically expand the cloud of uncertainty that now hangs over’ the lives of all the citizens of Utah, and the agents of its government.”

RELATED: Court documents in the Amendment 3 case

See all of FOX 13’s coverage of Amendment 3


  • Babs

    Wow, they are getting more and more desperate. They blew it in Denver, so they want to run to someone else.

  • Curtis Jensen (@curtisjunk)

    Pathetic actions of desperate men trying to halt the march of history. Too late, the reputation of Utah will be forever linked to this shameful chapter in world and American history. Just like the disgust we feel seeing photos of desperate and angry racists turning hoses on civil rights protesters in the south or yelling racist obscenities at African American teenagers who were merely trying to attend a newly integrated high school in Arkansas, We will look back at this time and the action of Utah officials (and voters) with shame and disbelief that anyone was so willing to fight for something so obviously morally indefensible in a country that is supposed to be about equality for all.

    • pete

      How ignorant can you be? I wish all you liberal hippies would stop drinking whatever Kool aid you all are sharing… There is no equality, this country does not care about the individual. Let me guess, you think we live in a democracy too? I also find it extremely ironic how you mention morals… obviously you pick n choose what’s morally right for everyone. Wake up, not everyone feels the same way you do, so stop being a bigot to the majority of utahns.

      • Babs

        Spoken like someone with no understanding of the law, whatsoever. Well done, Pete. Nice projecting, there.

  • LeoMarius

    The case cannot be decided by the Utah Supreme Court because the question is if it violates the US Constitution, not the Utah Constitution.

  • C Nisonger

    If you be very quiet, and listen very closely, you can hear the sound of Utah’s tax payer money being thrown down the toilet. I hope that the couples trying to adopt win, and then wish that the money lost would come out of Gov. Herbert’s and Utah congressmen/womens’ pay until the cost has been resolved. Loving v. Virginia set a nice president, although it had racism instead of sexual orientation. The only winners in this case are the lawyers. I imagine them watching a clock with a money counter under it and laughing all the way to the bank.

  • Common Sense

    Utah’s popular vote amendment 3 would be equal to a constitutional amendment in Georgia in1960 to amend negro’s to have equal rights. The local popular vote has nothing to do with our constitution and rights for all Americans.

  • Trish Ramirez

    Not going to happen.

    Utah is fighting tooth and nail to take control of this ruling, because Utah’s theocratic government and the money that fuel both this state and the state’s predominant, string-pulling religion comes from the fact that people around here marry, pop out a dozen kids and those kids do the same. Not to mention that they also pay money in the form of 10% to the same church that funds so many government expenditures and lines the pockets of so many politicians in exchange for allowing the church to govern as it chooses.

    If this happens, that means fewer little tithers to pay the bills, perhaps a shift in demographic that won’t allow the local predominant religion to continue running the show in perpetuity.

    The church has barely toed the government line since Utah was given statehood and the clergy that ran the state at the time started shipping polygamous church leaders and their families to Canada and Mexico in order to appear to be following the ‘one wife’ federal law and abandoning the Principle of Plural Marriage. The same high-ranking religious families that ran this state before it WAS a state are running it now, it’s a theocracy disguised as a Republican stronghold.

    If the demographic starts changing and the mormon leadership can no longer get the votes to retain their political positions in this state, the church will no longer be able to rule this state with an iron fist – and they are obscenely terrified of losing that control.

    Fortunately for the civilized world, there is no way that the appeals court is going to kick this case back to the hands of the very people who have fought tooth and nail to prevent LGBT couples from having equal rights in this state.

    That is, unless, the same book of mormon toting lawmakers that run this state have managed to use their church connections to line the pockets of some of the powers that be in an effort to retain control of Deseret.

    Oops, I mean Utah.

  • Wayne

    The “cloud of uncertainty” has been created by the actions of the state officials in failing to apply the Utah statutes to ALL validly married couples…..DEAL WITH IT!

  • pete

    Hate to break it to the liberal posters here, but in the end it’s gonna end just like the recent affirmative action case in Michigan.

      • pete

        There is a difference between the lower federal appeals rulings where hippie judges have grossly overstepped their powers and the affirmative action case that made it to SCOTUS. Chief Justice Roberts laid it out with the Michigan ruling… And there are more conservative justices than liberal. Drink all the Sotomayor juice you want and get educated before ya post.

      • David

        I hate to break it to Pete, however, once one of these makes it to the Supreme Court, Marriage Equality will be Law of the Land. All you have to do it listen to Justice Kennedy’s statements during the Prop 8 Trial. He’s ready to issue a very broad ruling, however Prop 8 was not the right case as the people arguing the case had no legal standing before the court.
        I also get a kick out of people screaming about “Activist Judges” They are doing what they are charged to do. Interpret the Constitution and hand down rulings on laws based on that. Just because people vote, does not make it Constitutional.

        Its ironic for most of Utahans that If most of the Baptist/Evangelical heavy South could vote on it, Mormonism would be banned.

  • Terry bredshew

    History, indeed, repeats itself.

    We talk about ‘sides of history.’ This euphemism could not possibly be more relevant than it is to our current… ‘Debate.’

    We’ll look back and shake our heads. Whether this occurs in the next 3 years or the next 300. Equality for all. And this includes equal access to happiness. If this is determined by marital status- well, god-fearing folk, that’s your fault.

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