Same-sex couple wants Utah AG, Health Dept. held in contempt of court

Posted at 6:52 PM, May 15, 2014

SALT LAKE CITY -- A legally married same-sex couple is taking the Utah Attorney General and the executive director of the Utah Department of Health to court, demanding to have them held in contempt of court for refusing to issue a birth certificate for their daughter.

FOX 13 was with Kimberly and Amber Leary on April 9 when they sought a birth certificate for their daughter, after a judge had granted their second-parent adoption.The Utah Department of Health refused to provide an amended birth certificate, putting both their names on it.

Shane Marx, an attorney representing the couple, filed an order to show cause in Salt Lake City's 3rd District Court, demanding Utah Attorney General Sean Reyes, Dr. David Patton, the executive director of the Utah Dept. of Health, and State Registrar Janice Houston appear in court "and show cause why they should not be held in contempt for their willful disregard and refusal to obey" a judge's order to issue the birth certificate.

Read the order to show cause here

"The parents are the parents under Utah law," said Clifford Rosky, the chairman of the gay rights group Equality Utah, who was acting as a spokesman for Marx. "They have an adoption, they have a court order say they shall be named on the birth certificate, and the state of Utah is simply defying that court order."

Rosky said the issue affects a number of legally married same-sex couples who were in the midst of the adoptions when the Utah Attorney General's Office got involved.

The Utah Attorney General's Office said it was asked to get involved by judges handling the adoptions and seeking clarity about the state of the law after a federal judge overturned the state's ban on same-sex marriage.

Reyes' office has said that since the U.S. Supreme Court halted same-sex marriages pending the appeal of Amendment 3, the ban on gay marriage is back on the books. They also believe that means they cannot recognize the marriages performed here, nor any second-parent adoptions involving gay or lesbian couples.

In a statement to FOX 13 on Thursday, the Utah Attorney General's Office said it is waiting for the Utah Supreme Court to weigh in.

"The State is not attempting to undo adoptions, restrain custody rights, nor suggest that these families are not serving the best interest of their children. What the State is doing is exercising its right to seek clarification from Utah’s highest court as to whether it can issue amended birth certificates," said Reyes spokeswoman Missy Larsen.

There is no indication that the Utah Supreme Court will even take up the issue. The state's top court has been silent for weeks ever since the attorney general sought an emergency writ on behalf of the Utah Department of Health.

A judge has slated a hearing on the order to show cause on June 16.