Utah Says It Will Not Recognize Same-Sex Marriage Performed During Federal Injunction

Whoa. The Chief of Staff of the Governor of Utah has sent a letter to all state agencies which says that it is directing all state agencies that recognition of same-sex marital status is "on hold" until the lawsuit in Kitchen v. Herbert is resolved.

This is a pretty extreme position to take, because those marriages were entered into when it was perfectly legal to do so because a federal judge had struck down Amendment 3 which banned same-sex marriage in Utah.

Based on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.

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. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.

The attorney for the lead plaintiffs in the lawsuit, Peggy Tomsic, has released a statement in response:

“This unprecedented and disappointing action harms not only my clients, but hundreds of other same-sex couples who also were legally married, and whose families have been needlessly destabilized and stripped of basic legal protection. By taking this unwarranted action, the State of Utah has discounted the lives of thousands of Utah citizens who live, work, and raise their families in Utah and pay Utah and federal taxes like all other Utah citizens. Regardless of how the State believes the Tenth Circuit will ultimately rule, these couples are legally married, and the State should treat them accordingly.”

There's no question that this will result in many more lawsuits, not less, about marriage equality in Utah.

Hat/tip to Joe.My.God

08/08/08: Today's My 4th Wedding Anniversary!

Me and my husband in front of the famous Trevi Fountain in Rome, Italy
(May 2012)

Today is my 4th wedding anniversary. On 08/08/08 I got legally married in California, before Proposition 8 passed, preventing other same-sex couples from doing so. Of course, it's somewhat silly just to say it's my 4th wedding anniversary since we have been registered domestic partners in California since 1999 and lived together since 1994 and a couple since 1991! Posting pictures of us together has become a regular tradition of this blog (2009, 2010, 2011), although generally this is the only day where you will see actual pictures of The Other Half.

But there ya go, the state of California only recognizes our marriage as legal and valid from August 8, 2008. I wonder when the United States will do so (when DOMA is struck down sometime in 2013!)

August 8th happens to be Roger Federer's birthday, so it's an easy date for me to remember :)

Arkansas Supreme Court Strikes Down Anti-Gay Initiative

Great news out of Arkansas! (I don't think I have typed that sentence very many times before.) In November 2008, voters passed Initiative Act 1 by a vote of 57-43 but Thursday the Arkansas Supreme Court unanimously ruled it unconstitutional and struck the measure down in Arkansas Dep't of Human Services v. Cole. The ballot measure banned unmarried, cohabiting couples from being considered for the adoption or foster care of children in Arkansas. Of course, Arkansas also bans same-sex couples from marrying, so Initiative Act 1's passage implicitly banned all same-sex couples from adopting or fostering children in the state.

As always, Chris Geidner of Poliglot summarizes the legal issues perfectly:

The court noted: 

We hold that a fundamental right to privacy is at issue in this case and that, under the Arkansas Constitution, sexual cohabitors have the right to engage in private, consensual, noncommercial intimacy in the privacy of their homes. We further hold that this right is jeopardized by Act 1 which precludes all sexual cohabitors, without exception, from eligibility for parenthood, whether by means of adoption or foster care. We quickly note that in certain instances, such as in custody, visitation, or dependency-neglect matters, the State and the circuit courts of this state have a duty to protect the best interest of the child. We will discuss this issue more fully below.

Then: 

We strongly disagree with the State and FCAC’s conclusion that if this court finds that the categorical ban on adoption and fostering for sexual cohabitors put in place by Act 1 violates an individual’s fundamental right to sexual privacy in one’s home, state courts and DHS will be prohibited henceforth from considering and enforcing non-cohabitation agreements and orders in deciding child-custody and visitation cases as well as dependency- neglect cases. That simply is not the case. The overriding concern in all of these situations is the best interest of the child. 

Finally: 

Thus, Act 1 directly and substantially burdens the privacy rights of “opposite-sex and same-sex individuals” who engage in private, consensual sexual conduct in the bedroom by foreclosing their eligibility to foster or adopt children, should they choose to cohabit with their sexual partner. The pressure on such couples to live apart, should they wish to foster or adopt children, is clearly significant. ...

Here Act 1 presents a pernicious choice for Cole. She can either give up her fundamental right to sexual intimacy in her home free from investigation by the State into her sexual practices in order to adopt or foster or forego the privilege of having children by adoption or fostering. We hold that the burden inflicted on her is direct and substantial. 

The court, thus, concluded: 

We conclude that the individualized assessments by DHS and our trial courts are effective in addressing issues such as relationship instability, abuse, lack of social support, and other factors that could potentially create a risk to the child or otherwise render the applicant unsuitable to be a foster or adoptive parent. These would be the least restrictive means for addressing the compelling state interest of protecting the welfare, safety, and best interest of Arkansas’s children. By imposing a categorical ban on all persons who cohabit with a sexual partner, Act 1 removes the ability of the State and our courts to conduct these individualized assessments on these individuals, many of whom could qualify and be entirely suitable foster or adoptive parents. As a result, Act 1 fails to pass constitutional muster under a heightened-scrutiny analysis.

If an Arkansas Supreme Court will strike down such a statute it shows that heterosexual supremacists trying to pass similar ballot measures in other states would very likely face even more hostile courts in other jurisdictions.

An important win for the good guys! Another reason I'm a card-carrying member of the ACLU.