To retroactively invalidate marriages that just days ago the state granted is unprecedented, according to legal experts. And some say that by taking this step, Utah will—ironically and inadvertently—show, over the days and perhaps years that the state's same-sex marriage battle plays out in courts across the country, why marriage means so much to so many.
“I think it reflects animus toward gay citizens; the order today specifically targets gay citizens for disfavored treatment,” says Paul C. Burke, a local attorney who has filing legal briefs to the U.S. Supreme Court on behalf of the Utah Pride Foundation in the other states' same-sex marriage cases. “Gov. Herbert has opened the door so that people will see the harm that his marriage ban inflicts on gay people. And in the coming weeks and months, I expect we will hear stories about how the denial of recognition of marriage rights will hurt families and children.”
In the 17 days of equal marriage rights in Utah, attorneys say, around 1,300 same-sex couples were wed. It's difficult to pin down how many might have sought out various state-provided services to put them on equal footing with other married couples.
These services could be as complex as receiving shared benefits from a spouse's health-care plan, or as mundane as changing a name on a driver's license. Herbert made clear in his letter that any services that have been completed by state agencies will be recognized. For instance, if a name change on a driver's license has already been processed, that license won't be revoked. But any changes currently in flux will remain in flux.
“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,” the statement says.
And resolution could be a long way off. The U.S. Court of Appeals for the 10th Circuit, in Denver, could rule on the matter in a couple of months. But no matter what happens there, appeals to the U.S. Supreme Court will follow, a process that could drag out same-sex Utahns' marriage limbo for years.
In that time, Burke says, life will happen. And as it does, same-sex couples who legally married in Zion will feel the blunt edge of discrimination.
“I can expect situations where people may get sick, may be denied access to medical benefits -- you can expect issues where people die—whether the state will treat their legal surviving spouse as their legal spouse,” he says. “You're going to see over the course of days and months demonstrations of why marriage matters to everyone. And we will likely see some heartbreaking examples where gay people are made to suffer for no good reason.”
Other same-sex-marriage advocates also found Herbert's stand to be a head-scratcher. Critics of Herbert's position pointed to a statement from the governor on Dec. 24, four days after U.S. District Judge Robert J. Shelby found the state's ban on gay marriage was unconstitutional. In it, Herbert noted that “many agencies will experience minimal or no impact” as a result of legalized same-sex marriage.
Reconciling this lack of impact with today's order is difficult for Clifford J. Rosky, a University of Utah law professor, who is also the chair of Equality Utah.
Rosky pointed out that the state, as it sought relief from the 10th Circuit court to halt gay marriages as it appealed the case, used as part of its legal argument that stripping the rights of those who married would harm those couples. Now, he says, the state, on its own volition, is preemptively causing the harm it warned of.
“It is extraordinary, because the state admitted that recognizing the marriages of same-sex couples did not impose any administrative burdens or harms on the state, and that unwinding or taking back marriages that have already been performed would be harmful to the couples and their children,” he says. “They've been recognizing them for weeks. Why stop? Why? I don't think there's any reason.”
Equality Utah and other groups are staging a rally in the Capital Rotunda on Friday at 12:30 p.m. As time passes, Equality Utah is urging same-sex couples to document how and when they are denied state services.
For now, though, Rosky and other proponents of same-sex marriage are left puzzling over when, if ever, a state has taken back a marriage it just granted.
“Frankly, nobody does this,” Rosky says. “In the name of marriage, you're going to refuse to recognize 1,000 marriages. It's a strange way of honoring the institution of marriage.”