ACLU sues Utah for not recognizing same-sex marriages

Posted at 12:22 PM, Jan 21, 2014

SALT LAKE CITY -- Four couples have filed a lawsuit against the state of Utah over the governor's directive to state agencies to not recognize their marriages.

The couples, represented by the American Civil Liberties Union of Utah, announced the lawsuit Tuesday against the state, Governor Gary Herbert and Utah Attorney General Sean Reyes.

"It was such a great feeling to be able to get married and all of a sudden to have that taken away from us...," said Donald Johnson, who married his husband Carl Fritz Shultz, during the days it was legal in Utah.

After a federal judge declared Utah's Amendment 3 unconstitutional, an estimated 1,360 same-sex couples obtained marriage licenses. But weeks later, when the U.S. Supreme Court halted the marriages pending an appeal of the case, Governor Herbert directed state agencies to not recognize the marriages.

"It was emotional," Elenor Heyborne, another plaintiff in the lawsuit, said in an interview with FOX 13. "It felt really, really personal."

Heyborne married her wife, Marina Gomberg, the day the judge's order came down. Some of the couples claim the governor's directive has harmed them in making healthcare decisions, estate planning and other situations that married heterosexual couples find no troubles with.

Tony Milner and Matthew Barazza were in the middle of an adoption of their 4-year-old son, Jesse, when the governor made his decision.

"We immediately filed with the courts for the second-parent adoptions, but then with the court ruling and everything else, the judge called us back and said things are on hold indefinitely until we know for sure where the state stands," Milner said.

ACLU of Utah Legal Director John Mejia said hundreds of married same-sex couples had sought to be plaintiffs in the lawsuit. He said the lawsuit is not a class-action to speed up the court process.

While only four couples are suing the state, the impact will affect all of the couples. The lawsuit seeks to have all of the marriages recognized by the state, even if Amendment 3 -- which defines marriage as between a man and a woman and doesn't recognize anything else -- is upheld.

"We feel it violates the Utah constitution," said attorney Erik Strindberg, who represents the couples. "It's a violation of the due process clause of the Utah constitution."

In a statement to FOX 13, Governor Gary Herbert's office responded to the lawsuit:

"Governor Herbert has said throughout this process that his responsibility is to follow the law. That is exactly what the administration is doing and we respect the rights of those who disagree to take their grievances before a judge."

The state is expected to respond in 20 days. The first hearing could be held in West Jordan's 3rd District Court within the next two months, although the judge could hold off until the Amendment 3 case is heard in the 10th U.S. Circuit Court of Appeals.

Utah Attorney General Sean Reyes issued a statement late Tuesday:

Since the U.S. Supreme Court’s stay of the district court’s injunction in Kitchen v. Herbert, the State of Utah has been unable, under Utah law, to recognize marriages between persons of the same sex.  Amendment 3, which added Article 1, Section 29 to the Utah Constitution, reads:

1.    Marriage consists only of the legal union between a man and a woman.

2.    No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.

Consistent with Utah law, the county clerks in all of Utah’s 29 counties, since entry of the stay on January 6, are unable to issue licenses to marry persons of the same sex.  Those same sex couples who entered into marriages prior to the entry of the stay remain married and retain the benefits they received as a result of those marriages during the pendency of the appeal process, but the State can neither recognize nor confer new marital benefits. 

While the ultimate validity of such marriages is subject to the decision of the highest court, we are unable under Utah law to recognize requests for Utah state benefits applied for after the Supreme Court's stay. 

Click here to read a copy of the plaintiffs' lawsuit.