Utah, gay activists brace for long legal fight over gay marriage

The fight over gay marriage in Utah is likely to be a protracted one, as top officials in this conservative state vow to keep their ban enshrined in the state constitution, even if it means appealing to the US Supreme Court.

Meanwhile, nearly 1,000 same-sex couples have flocked to courthouses throughout Utah to obtain marriage licenses. There, too, is a certain limbo: Most counties are issuing licenses to the couples, while others are refusing, saying they want to wait for clarification from the state on how to proceed.

The situation is creating potential legal jeopardy for both sides, experts say. On one hand, county clerks who do not issue licenses now, after a federal judge overturned the state's ban, may be found in contempt of court or be the targets of private lawsuits. On the other, same-sex marriages performed now might be "unrecognized" later if the state's appeal to a higher court succeeds and the gay marriage ban is restored. 

So far, the state has lost its bid to halt gay marriages while its appeal is pending in the US 10th Circuit Court of Appeals. US District Judge Robert Shelby, the same judge who on Friday invalidated Utah's gay marriage ban, refused Monday to issue a temporary injunction. The state Attorney General's Office said Monday it will ask the 10th Circuit Court for a stay of Judge Shelby's order.

“We have done all we can up to this point and we will continue to pursue all avenues available to us,” the statement read.

The 10th Circuit Court may take up the matter of a temporary stay by next Tuesday, but its ruling on the constitutionality of the ban itself is probably months away. 

According to the Salt Lake Tribune Tuesday, Acting Attorney General Brian Tarbet said the state is likely to take its appeal to the US Supreme Court if the appeals court does not rule in Utah's favor.

Neither the state attorney’s office nor Gov. Gary Herbert (R) has provided instruction to county offices regarding whether to proceed with issuing marriage licenses to same-sex couples, leaving county officials to make the determination on their own. As of Tuesday, 22 of the state's 29 counties were issuing licenses to gay and lesbian couples.

Brian Thompson, clerk of Utah County, is not allowing his office to grant the licenses, saying he is tracking the action at the appeals court. “I have a responsibility as an elected official to proceed with caution,” he told The Salt Lake Tribune.

Similarly, Stephen Hadfield, attorney for Box Elder County, said, “There is a conflict between the state statute and the judge’s ruling,” and his office needs “further clarification.”

There is a price to pay for stalling: lawsuits and federal court penalties, says Carl Tobias, a law professor at the University of Richmond in Virginia.

“You have a ruling that has not been stayed or overturned, and it should be the law and it should be followed in Utah. They are violating a court order,” says Professor Tobias of the recalcitrant county officials.

During Monday’s court hearing, Judge Shelby warned that county clerks who refuse to issue the licenses to gay couples are acting unlawful. “My intent is to prevent the state of Utah, or anyone acting on its behalf, from denying same-sex couples the protections guaranteed by the US Constitution,” he told The Salt Lake Tribune.

Assistant Utah Attorney General Phillip Lott argued during that hearing that Shelby created a “chaotic situation” by overturning the ban so suddenly. He asked the judge to “take a more orderly approach than the current frenzy” and allow the state to “follow its democratically chosen definition of marriage.”

Gay rights advocates, for their part, say state officials are manufacturing a crisis. Utah is “now experiencing a constitutional crisis wholly of its own making” in that local officials have “stalled, delayed, obstructed, and refused to follow” Shelby’s order, attorneys Brett Tolman and Paul Burke, who jointly filed a friend of the court brief with the US Supreme Court on behalf of the Utah Pride Center earlier this year in connection with a different case, said in a statement issued Tuesday.

“We are deeply concerned … that our elected officials are undermining the rule of law by failing to honor a lawful order from Utah’s federal court,” they wrote.

If, in several months, the US appeals court were to strike down Shelby’s order, marriage licenses issued in the interim would still be valid, says Tobias. The “closest precedent” is California, which started issuing same-sex marriage licenses in 2008 but then halted the practice when voters approved Proposition 8, a state constitutional amendment to prohibit it, he says. Although the state could no longer issue licenses, the ones it did issue before Prop. 8 were considered legally valid.

In June, a US Supreme Court decision about Prop. 8 cleared the way for gay marriage to resume in California, leaving in place a lower court ruling that the state ban is unconstitutional.

“It’s extremely unlikely [the marriages] would be reversed,” Tobias says of Utah's newly married gay couples.