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Uncertainty lingers for Utah’s married, same-sex couples and their children

Wednesday, May 21, 2014
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Matthew Barraza, left, and his husband Tony Milner with their son Jesse, are plaintiffs in a lawsuit against the state of Utah that claims the state has put hundreds of gay and lesbian couples in legal limbo and prevented them from getting key protections for themselves and their children.Rick Bowmer, AP

Matthew Barraza, left, and his husband Tony Milner with their son Jesse, are plaintiffs in a lawsuit against the state of Utah that claims the state has put hundreds of gay and lesbian couples in legal limbo and prevented them from getting key protections for themselves and their children.

SALT LAKE CITY — A federal judge’s ruling ordering officials to recognize gay marriages that took place in the state after a same-sex marriage ban was overturned marked a key victory for Utah gay and lesbian couples. But it doesn’t end their months-long legal limbo.

U.S. District Judge Dale Kimball on Monday delayed implementation of his ruling for 21 days to give Utah officials time to appeal. That means the more than 1,000 same-sex couples who tied the knot in the state must wait to move forward with issues such as child custody, medical decisions and inheritance.

For those with pending adoptions, it’s even murkier because the Utah Supreme Court ordered a temporary halt Friday of several district judges’ orders requiring the state health department to issue birth certificates in adoptions by same-sex parents. It’s unknown how that order fits within the new ruling.

Meanwhile, everybody is waiting for the most important ruling: a decision from a federal appeals court in Denver on the constitutionality of the same-sex marriage ban that Utah voters passed in 2004. It was overturned by a federal judge in December.

The appellate panel has heard arguments, and its ruling could come at any time.

Among the couples living through the uncertainty is Matthew Barraza and Tony Milner. They have a pending request to have Milner recognized as a legal parent of their son, Jesse, who is only Barraza’s son under the law.

“It would be nice if the state chose not to appeal this and let everybody get on with their lives,” Barraza said.

Utah Attorney General Sean Reyes said in a statement late Monday that he’s assessing the legal impact of the ruling and promised to make a decision about an appeal within the 21-day window. His office declined to comment further Tuesday on the decision-making process.

Gov. Gary Herbert, a Republican who has vowed to defend the ban, said through a spokesman that current “chaos” can be blamed on the federal judge who first struck down the ban and opted not to grant an emergency stay three days after the ruling. The governor is working closely with Reyes to figure out what to do next, his spokesman, Marty Carpenter, said.

An appeal of the new ruling would go to the 10th U.S. Circuit Court of Appeals in Denver — the same court mulling the state’s ban.

The American Civil Liberties Union filed the lawsuit in January on behalf of four couples, including Barraza and Milner, who said the state’s decision to freeze benefits for same-sex couples violated their rights.

The gay and lesbian couples married after a federal judge overturned Utah’s ban Dec. 20. Those weddings came to a halt Jan. 6 when the U.S. Supreme Court granted an emergency stay.

Utah officials argued they had no choice but to hold off on benefits until an appeals court rules on same-sex marriage.

The ACLU has said the gay marriages performed during the 17-day window when they were legal are valid no matter what the appeals court rules.

In his ruling, Kimball said there is a deep-rooted precedent that couples earn vested rights once the marriage is solemnized.

He cited the California Supreme Court’s 2009 decision to uphold the validity of same-sex marriages performed before the state passed a gay marriage ban.

“No separate step can or must be taken after solemnization for the rights of a marriage to vest,” wrote Kimball, who was appointed to bench in 1997 by President Bill Clinton.

Marina Gomberg, who is a plaintiff in the lawsuit along with her wife, Elenor Heyborne, is optimistic things will work out well despite the current state of flux.

“There is such great momentum,” Gomberg said. “It’s the way of our nation to move in a direction of inclusivity.”

Case archives: Evans v. Utah.

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