Fast-growing but still-patchy gay rights create absurdities

[dropcap]A[/dropcap] FEDERAL judge on Monday ruled that Utah must recognize the roughly 1000 same-sex marriages performed in the state last December during the 17-day period that stretched between a decision striking down the state’s ten-year-old gay marriage ban and the U.S. Supreme Court’s decision to stay the decision pending appeal.

It’s unclear what effect U.S. District Judge Dale Kimball’s ruling will have on same-sex adoptions, a subject presently tied up in court. The ruling also establishes, on one hand, a legally absurd “lucky few” category of gay couples who enjoy recognized marriages and many of the legal and financial benefits that go with them and, on the other, a much larger category of Utahans left outside the state’s now slightly expanded circle of marriage.

As the Salt Lake Tribune reports, Kimball’s ruling echoed decisions being handed down at a quickening pace around the country.

“Although the state has a general interest in representing the wishes of its voters, that interest does not outweigh the harms [same-sex couples] face by having their constitutional rights violated… Governor Gary Herbert and Attorney General Sean Reyes shall immediately recognize the marriages by same-sex couples entered pursuant to Utah marriage licenses issued and solemnized between December 20, 2013, and January 6, 2014, and afford these same-sex marriages all the protections benefits and responsibilities given to all marriages under Utah law.”

Among the marriage protections and benefits enumerated by Kimball: The right to property, inheritance, legal protection and “the custody and care of children.”

Kimball’s decision seems likely to press the scales to some degree in an ongoing case in which Utah is suing to overturn three state court decisions to grant adoptions to married gay couples. The state’s Supreme Court on Friday halted same-sex adoptions, the numbers of which were beginning to grow, even as the legal status of same-sex family relationships remain suspended at various heights in a state of limbo.

The state attorney general and governor have yet to say whether they’ll appeal Kimball’s ruling. Kimball’s decision goes into effect in 21 days.

Utah’s marriage law began to come apart in earnest on December 20 last year, when U.S. District Judge Robert Shelby overturned the state’s gay-marriage ban. His sweeping decision set the ground for rulings that seemed to come like toppling dominos around the country in the weeks afterward. On April 10, 2014, a three-judge panel at the 10th Circuit Court of Appeals considered arguments for and against Shelby’s ruling. The judges are expected to hand down a decision in a matter of weeks. A decision in favor of gay marriage would likely be appealed by Utah to the U.S. Supreme Court. A decision against gay marriage would leave Utah with the present fractured marriage laws it is struggling to make sense of today.

Indeed, Peggy Tomsic, the lead attorney who argued for same-sex couples before Shelby and the 10th Circuit panel, is a lesbian who married her girlfriend in the 17-day window after Shelby’s December ruling. Her clients in the gay marriage case, Kitchen v Herbert, include an unmarried couple and a couple married in Iowa now living in Utah. The effect of today’s ruling, will mean Tomsic is Utah gay-married with benefits but at least two of her clients are not and can not be… for now.

In Oregon yesterday, District Judge Michael McShane struck down that state’s marriage ban. No one argued in favor of the law on behalf of the state. “No one with legal standing wanted to go down in history as defending marriage discrimination,” said Freedom to Marry’s Thalia Zepatos. Gay couples began getting married hours after the ruling.

In Pennsylvania, a federal judge is expected to hand down a gay marriage decision later this afternoon.

*UPDATE: That happened. U.S. District Judge John Jones, appointed by George W. Bush in 2002: “We now join the twelve federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage.”

[ Image by Jose Antonio Navas. ]