About 1,000 gay couples in Utah married between December 20th and this Monday, when the Supreme Court issued a stay on a federal judge's decision against the state's gay marriage ban. So, what happens now? In short, the legal status of those married couples is in "legal limbo" as the state works to figure out what it'll do next.
The Supreme Court's two-sentence stay remains in effect until the 10th Circuit Court of Appeals issues a ruling on the case. That means same-sex marriages in Utah are on hold until at least March, when the appeals court could hear the case (a date is not yet set). Should the appeals court decide in favor of the same-sex couples suing for the right to marry, county clerks in Utah might begin issuing licenses to same-sex couples in a matter of months. But it's almost certain that this case will end up going to the full court of appeals, and then to the Supreme Court for consideration, no matter the outcome. That means newly married gay couples in the state will have to wait for a final decision on their unions, probably until the spring of 2015, when one could expect a Supreme Court decision on the case.
Those married couples will face quite a bit of uncertainty until then. Shortly after U.S. District Court Judge Robert J. Shelby's decision against the state ban, Gov. Gary Herbert ordered state agencies to begin providing benefits to married same-sex couples in the state. The New York Times notes that some state employees applied for employer-provided health insurance for their spouses, while others plan to file their 2013 tax returns jointly. Parents of adopted children can now in theory apply to have their spouse added as a legal parent, too. It is not clear, however, whether any gay couples in the state have actually received benefits at this point, or how the stay will change the state's plans to provide them. Earlier, the state warned same-sex couples that their marriages could be dissolved in the future, pending legal appeals. And that's not even taking into consideration whether the federal government, thanks to the Windsor decision in the Supreme Court, will now recognize the marriages and provide federal benefits to those couples. On Tuesday, the White House deferred comment on that question to the Department of Justice.
Mike Dorf argues that the Supreme Court could have avoided this uncertainty by including a clarification in its stay:
My own view is that, even if the Court was right to stay the judgment with respect to Utah same-sex couples who haven't married yet, it should have said that the already-married 900+ couples should be treated as legally married pendente lite. After all, part of the rationale for staying the judgment is to avoid having couples marry but then be told that their marriages are invalid. That rationale doesn't apply to the 900+ because declaring their marriages void pendente lite inflicts the very harm that a stay is meant to avoid. But even if the Court disagreed with me about that point, it could have said so expressly, rather than leaving Utah citizens and the state uncertain about the legal status of their marriages.
But the court did not do this. And right now, the Utah Attorney General's Office doesn't have a very clear answer yet for the couples in question. Here's their statement on the legal status of those marriages:
There is not clear legal precedence for this particular situation. This is the uncertainty that we were trying to avoid by asking the District Court for a stay immediately after its decision. It is very unfortunate that so many Utah citizens have been put into this legal limbo.
Utah’s Office of Attorney General is carefully evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally.
As The Wall Street Journal points out, however, there are at least two similar cases from which Utah could draw guidance: In California, about 18,000 gay couples were married in just a few months after a state court decision legalizing same-sex marriages, but before voters passed Proposition 8. And in New Mexico, a handful of couples married in one day when a county clerk started issuing licenses to same-sex couples, before the state's Attorney General ordered her to stop. In both cases, the couples' unions remained valid even as new same-sex marriages were prohibited. At this point, both California and New Mexico have legal same-sex marriages.
If the state decides to void marriages performed after Shelby's decision and before the stay, the Attorney General's office might have to deal with yet another wave of litigation, according to Fox 13's assessment. In any case, the federal government, along with Governor Herbert, really need to clarify the temporary legal status of the hundreds of couples who were recently married. Given the conservative state's determination to fight for its same-sex marriage ban, it will take the courts a long time to make a final decision.