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.
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.”