Same-sex marriage in Utah

Same-sex marriage has been legally recognized in Utah since December 20, 2013, when the state began issuing marriage licenses to same-sex couples as the result of Judge Robert J. Shelby of the U.S. District Court for Utah ruling in the case of Kitchen v. Herbert, which found that barring same-sex couples from marriage violated the U.S. Constitution. The issuance of those licenses was halted during the period of January 6, 2014 until October 6, 2014, following the resolution of a lawsuit challenging the state's ban on same-sex marriage. On that day, following the U.S. Supreme Court's refusal to hear an appeal in a case that found Utah's ban on same-sex marriage unconstitutional, the Tenth Circuit Court of Appeals ordered the state to recognize same-sex marriage.[1][2]

Same-sex marriage became temporarily legal in the state on December 20, 2013, as the result of a ruling of the U.S. District Court for the District of Utah. The United States Supreme Court stayed the ruling on January 6, 2014, while the Tenth Circuit Court of Appeals in Denver considered the case.[3] On June 25, 2014, the Tenth Circuit upheld the lower court ruling, a decision that sets a precedent for every state within the circuit. However, the Tenth Circuit stayed this ruling.

Same-sex marriages that were performed in December 2013 and January 2014 in the state are recognized by the Federal Government, but a ruling requiring the state of Utah to recognize such marriages was stayed by the United States Supreme Court on July 18, 2014.[4] The US Supreme Court refused the appeal from the state of Utah on October 6, 2014, requiring Utah to license and recognize same-sex marriages.

Marriage

Statute

In 1977, the Utah State Legislature passed a statutory law banning same-sex marriage in the state.

In 1995, the Utah House of Representatives passed H.B. 366, a bill banning recognition of out of state same-sex marriages and same-sex unions in the state. On March 1, 1995, the Utah State Senate voted 24–1 in favor of the bill. On the same day, Governor Mike Leavitt signed the bill into law.[5][6]

In 2004, the Utah State Legislature passed S.B. 24, a bill banning state same-sex marriages and its "substantially equivalent" in the state. On March 23, 2004, Olene Walker signed the bill into law and the law went into effect on the same day.[7]

Constitution

On March 3, 2004, the Utah State Senate voted 20-7 in favor of Amendment 3, a constitutional amendment banning same-sex marriage and any "domestic union" that grants "the same or substantially equivalent legal effect". On the same day, the Utah House of Representatives voted 58–14 in favor of the amendment. On November 2, 2004, Utah voters approved of the amendment by a margin of 65.8% to 33.2%. The amendment went into effect on January 1, 2005.[8][9]

Lawsuits

Kitchen v. Herbert

Main article: Kitchen v. Herbert

District Court

On March 25, 2013, three same-sex couples, including one already married in Iowa, filed a lawsuit in the United States District Court for the District of Utah seeking to declare Utah's prohibition on the recognition of same-sex marriages unconstitutional under the Due Process and Equal Protection clauses of the United States Constitution.[10] The court heard arguments on December 4. The state argued that there was "nothing unusual" in enforcing policies that encourage "responsible procreation" and the "optimal mode of child-rearing". The plaintiffs' attorney contended that the policy is "based on prejudice and bias that is religiously grounded in this state".[11] On December 20, 2013, District Judge Robert J. Shelby struck down the same-sex marriage ban as unconstitutional.[12] He wrote:[13]

Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities.

It was the first federal court decision to address state recognition of same-sex marriage since the U.S. Supreme Court's decision in United States v. Windsor that held Section 3 of the federal Defense of Marriage Act, which denied federal recognition to same-sex marriages, unconstitutional.[14]

Marriage licenses

During the first six days following the ruling, Utah county clerks issued marriage licenses to more than 900 same-sex couples.[15][16][17] Historian J. Seth Anderson and neuroscientist Michael Ferguson were the first gay couple legally married in Utah.[18] Utah State Senator Jim Dabakis, chairman of the Utah Democratic Party, was one of the first to get married in Salt Lake City. Mayor Ralph Becker of Salt Lake City officiated at his ceremony and at dozens more.[19] Two couples in Washington County became the first same-sex couples to marry in a county other than Salt Lake County, shortly before the county clerk's office closed on December 20.[20]

Officials in Salt Lake County, the most populous county in the state, began issuing marriage licenses to same-sex couples immediately after the ruling.[15][21] The county district attorney, Sim Gill, said that the ruling prevents the state from enforcing the ban: "The current state of the law is that we cannot prohibit [the marriages]."[14] Weber County announced plans to open Saturday, the day after the ruling, to process marriage licenses for same-sex couples, but canceled its plans citing "security requirements" and concerns that opening early could violate "equal protection provisions".[22] Davis County began issuing licenses on Monday, December 23.[23]

Some Utah County clerks initially declined to grant marriage licenses to same-sex couples, saying they were still reviewing the ruling and consulting with their county attorneys.[24][25] Several continued to do so on December 23, the Monday following the ruling, including Box Elder, Carbon, Juab, San Juan, Sanpete, Sevier and Utah counties. Officials in Sanpete and Sevier counties said they would begin offering licenses to same-sex couples on December 24. Cache County closed its clerk's office altogether "to sort out the legal issues and confusion created in the wake of Judge Shelbys decision"[26] and began issuing licenses to same-sex couples the next day.[27] The Piute County clerk's office was closed both days and the clerk was on vacation. All counties but Box Elder, Piute, San Juan and Utah counties were issuing or willing to issue same-sex marriage licenses on December 24.[28]

Following the Tenth Circuit's denial of the state's request for a stay of Shelby's order, Utah County Clerk Bryan Thompson announced that the county would issue marriage licenses to same-sex couples on December 26.[29] The remaining counties of Box Elder, Piute and San Juan also announced they would issue licenses.[30][31]

Reaction and appeal by the state

Utah Governor Gary Herbert responded to Shelby's ruling the same day saying: "I am very disappointed an activist federal judge is attempting to override the will of the people of Utah. I am working with my legal counsel and the acting Attorney General to determine the best course to defend traditional marriage within the borders of Utah."[14] On December 24, he instructed members of his cabinet that "Where no conflicting laws exist you should conduct business in compliance with the federal judge's ruling until such time that the current district court decision is addressed by the 10th Circuit Court."[32]

Bishop John Wester of the Roman Catholic diocese of Salt Lake City, called the decision "an affront to an institution that is at once sacred and natural". Some other religious leaders welcomed the decision, including representatives of the Unitarian Universalist Association and Episcopal Bishop Scott Hayashi, who also advised "compassion" for those who objected to the ruling: "The change that this represents will cause them heartache, frustration and a feeling that our country is going in the wrong direction."[33]

The state Attorney General's office appealed the ruling to the Tenth Circuit Court of Appeals and sought an emergency stay to prevent additional licenses from being issued to same-sex couples.[34][35] The Tenth Circuit rejected the requested stay motion on December 22 "[b]ecause the motion before us does not meet the requirements of the Federal or local appellate rules governing a request for a stay".[36] On December 23, Shelby denied a request for a stay[37] and the Tenth Circuit denied the state's second emergency motion for a temporary stay.[38] On December 24, the Tenth Circuit again denied the state's request for a stay.[39] On December 31, the state asked the Supreme Court to issue a stay,[40] which the Court granted on January 6, pending a decision by the Tenth Circuit.[41][42]

On January 9, Utah's Attorney General advised county clerks to complete processing marriage certificates for same-sex couples whose marriages were solemnized "prior to the morning of January 6".[43] The state announced that under the stay it would return to enforcing Utah's ban on licensing or recognizing same-sex marriages. On January 10, U.S. Attorney General Eric Holder announced that the Federal Government will recognize the 1,360 same-sex marriages that had already been performed in Utah prior to the stay.[44][45] Several attorneys general of states that have legalized same-sex marriage announced they will recognize the Utah marriages.[46] According to rules issued on January 15 by the Utah Tax Commission, a same-sex couple who file a joint federal income tax return can file a joint return for their Utah income taxes as well.[47]

On January 16, the Utah Attorney General's office announced it had hired Gene C. Schaerr, a veteran litigator in state and federal appellate courts, to assist in its defense of Utah's ban on same-sex marriage.[48][49] Oral arguments in the case were heard on April 10, 2014.[50]

On June 25, the Tenth Circuit affirmed the district court decision, but also stayed implementation of its decision, pending a further appeal or certiorari.[51][52] "The Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state's marital laws," the court wrote in its 2-to-1 ruling. "A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union."[52] On August 5, the Utah Attorney General's office asked the U.S. Supreme Court to consider the case.[53]

On October 6, the U.S. Supreme Court rejected Utah's appeal without comment, allowing the Tenth Circuit to lift its stay. In response, Governor of Utah Gary Herbert and Attorney General Sean Reyes announced that Utah would comply with the decision of the Court and swiftly advise state agencies to recognize legally performed same-sex marriages.[2]

Evans v. Herbert

Once a stay was granted in Kitchen, Utah returned to its practice of denying marriage licenses to same-sex couples and it no longer recognized the validity of those marriages established by same-sex couples in Utah while Judge Shelby's ruling was in effect in December 2013 and January 2014. On January 21, 2014, the ACLU brought suit on behalf of four same-sex couples married in Utah during that period, raising concerns about the impact of Utah's action on their adoption, parenting, and health benefits rights. On May 19, Judge Dale A. Kimball of the U.S. District Court for Utah ruled in Evans v. Herbert that Utah must recognize the same-sex marriages performed in Utah the previous December and January.[54][55] On June 4, the state appealed Kimball's ruling before it took effect.[56] The Tenth Circuit announced on July 11 it would not issue a permanent stay while the state appealed Kimball's decision.[57] The state asked the U.S. Supreme Court to issue the stay, and on July 18 Justice Sonia Sotomayor, after referring the question to the other members of the court, granted the stay pending resolution of the case by the Tenth Circuit.[58] In August, the Tenth Circuit granted the state's request for additional month to file its appeal, setting October 22 as the deadline.[59]

After the U.S. Supreme Court refused to hear Kitchen, Utah officials asked the Tenth Circuit to dismiss its appeal in this case, ending its attempt to deny recognition to the December/January same-sex marriages.[60] The order and permanent injunction was issued on November 24, 2014 by the United States District Court for Utah, Central Division.[61]

Senate Bill 297

Main article: Senate Bill 297 (2015 General Session of the 61st Utah State Legislature)

On March 11, 2015, the Utah House of Representatives passed, 66-9, Senate Bill 297, a bill that allows for an exemption for individuals, religious officials, religious organizations, and government officers and employees who object to participating to issuing marriage licenses for marriages they object to based on "deeply held beliefs about marriage, family, and sexuality." On March 12, 2015, the Utah Senate passed the bill, 25-3 with 1 abstentions. On March 20, 2015, Governor Gary Herbert signed the bill into law and it went into effect on May 12, 2015.[62]

After Obergefell v. Hodges

On February 5, 2016, a bill that would have amended Utah's marriage laws was introduced by Republican Kraig Powell. The bill would have changed the terms "husband and wife" to "spouses" or "married couple" thus making all mentions to marriage gender-neutral. It would have also removed the statutory same-sex marriage ban.[63][64] The bill had its first reading in the House on February 8, 2016, however it received no further reading in both the House and the Senate. The 2016 General Session ended on March 10, 2016 and as a result the bill died.[63] Furthermore, a bill, titled the Uniform Parentage Act Amendments, was introduced in the Senate on February 18, 2016. It would have updated Utah's adoption laws by replacing "mother and father" with "parents". It also failed to pass before March 10, 2016.[65]

On March 10, 2016, Senator Jim Dabakis successfully delayed a vote on an anti-gay bill that sought to change the definition of joint tenants from "any legally married couple" to "husband and wife". The bill would have stopped same-sex couples from being legitimate joint tenants under Utah law.[66] The bill had been approved in the House earlier in March and was having its last reading in the Senate, however just three minutes before the 2016 General Session ended on March 10, Dabakis delayed the reading by sneezing, thus killing the bill.[67][68]

Domestic partnerships

Utah Senator Greg Bell (Republican from the 22nd Senate District in Davis County) sponsored S.B. 89 ("Mutual Dependence Benefits Contract") unsuccessfully in 2005. The bill would have provided "for the creation of mutual dependence benefits contracts, which allow two adults, not eligible for marriage, to share certain rights and responsibilities regarding property ownership or health-related matters".[69]

Utah State University administrators planned to create a domestic partnership registry in early 2005, but university legal counsel Craig Simper said it might violate the Utah Constitution. He said that the marriage amendment requires that "no other domestic union may be recognized as a marriage or given the same or substantially equal legal effect." He said that the university "does not want to be the test case and does not intend to be the test case". University Professor Barry Franklin gathered enough petition signatures on November 20, 2005 to raise the issue at the university Faculty Senate of giving domestic partner benefits to university employees including those who are part of same-sex relationships.[70] Senate members voted on December 5, 2005 to continue researching the matter.[71]

Salt Lake County Councilwoman Jenny Wilson, D-At Large, sponsored a bill unsuccessfully in 2005. The bill would have provided domestic partner benefits to county government employees including those who are part of same-sex relationships.[72] Wilson sponsored a similar bill in 2009,[73] which was approved.[74] In 2013, the Salt Lake County Council approved of a mutual commitment registry.[75]

Salt Lake City Mayor Ross C. "Rocky" Anderson signed an executive order in 2005 that provides domestic partner benefits to city government employees including those who are part of same-sex relationships. The Arizona-based religious legal action group called the Alliance Defense Fund sued the city, claiming that the order violated the Utah Constitution. The American Civil Liberties Union joined the city in defending the order saying it protected "the right to be free from discrimination based on their relationships and the right to equal compensation for equal work."[76]

Salt Lake City Council members adopted a bill in 2008 that provides a mutual commitment registry to "unmarried domestic partners—gay or straight—and to other adults in financially dependent relationships, such as a person caring for an aging parent".[77]

Park City School District Board of Education members adopted a policy in 2011 that provides domestic partner benefits to district employees including those who are part of same-sex relationships.[78] Salt Lake City School District Board of Education members adopted a similar policy several months later.[78]

Public opinion

Public opinion for same-sex marriage in Utah

Poll source	Date(s) administered	Sample size	Margin of error	% support	% opposition	% no opinion
Public Religion Research Institute	April 5-December 23, 2017	732	?	54%	38%	8%
American Values Atlas/Public Religion Research Institute	May 18, 2016-January 10, 2017	1,056	?	51%	41%	8%
Utah Policy	June 8–17, 2016	614	± 3.95%	42%	52%	6%
American Values Atlas/Public Religion Research Institute	April 29, 2015-January 7, 2016	813	?	46%	47%	6%
Dan Jones	October 14–16, 2014	405	± 4.9%	37%	58%	5%
New York Times/CBS News/YouGov	September 20–October 1, 2014	935	± 3.7%	34%	56%	10%
Benenson Strategy Group	September 21–23, 2014	500	± 4.4%	49%	48%	3%
Dan Jones/Associates	August 12–14, 2014	400	± 4.9%	29%	61%	10%
Dan Jones & Associates/Cicero Group	January 14–16, 2014	746	± 3.6%	36%	57%	6%
SurveyUSA	January 10–13, 2014	600	± 4.1%	48%	48%	4%
Public Policy Polling	July 8–10, 2011	723	± 4.6%	27%	66%	7%

See also

• LGBT rights in Utah
• Same-sex marriage in the United States

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