All couples who were married before the stay whether same-sex or not remain legally married after the stay. Yet the state of Utah is now refusing to honor the marital vows of only same-sex couples.
The state's decision to effectively null existing marriages is without precedent. Far from honoring and sustaining existing federal law, the governor is pandering to fears and the worst angels of our state's nature. He has sought to turn back the hands of time, and in so doing he has exposed the state of Utah's animus at the heart of Amendment 3.
The state of Utah has chosen to deprive same-sex couples of their marital rights even though the governor's office has acknowledged that the advent of marriage equality was having minimal or no impact on most state agencies. In contrast, the state has readily acknowledged that the withdrawal of marriage rights is harmful to gay couples.
So instead of hurting no one while the legal drama unfolds, Gov. Herbert and the state of Utah have purposefully punished gay couples for marrying. That is the very definition of animus, and that is one reason why Amendment 3 is no more constitutional than was DOMA.
Until now, much of the pain from Utah's marital apartheid has been invisible. In the coming weeks and months, the human toll will accrue in public view.
As the case grinds through the court system, legally married gay couples in Utah will continue living their lives. Some couples will be blessed to become parents; some couples will move or separate; some spouses will get sick; and some may even die. Meanwhile, all LGBT families will feel the renewed pain of inequality.
Owing to the inevitability of tragedy, there will likely be heartbreaking examples of why marriage matters to everyone. Again treated as strangers to the law, only the grieving widows of same-sex partners will be denied survivorship rights; only the husbands and wives in a same-sex marriage will be denied tax breaks; and only a gay spouse will be deprived of medical insurance and the legion of other benefits afforded by state law to other married couples.
The denial of marital rights will directly hurt the lives of these couples as well as their children and extended families. Every day and at every milestone of life, the deprivation of marriage rights will inflict harm on these families, exposing them to peril and legal insecurity. Not surprisingly, the U.S. Attorney General has refused to join this drastic backtrack toward inequality, announcing that the federal government will recognize same-sex marriages performed in Utah.
Last summer, the U.S. Supreme Court struck down the Defense of Marriage Act after observing that "DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal." The state of Utah is acting no differently here. Utah is using the stay as an excuse to target a subset of state-sanctioned marriages namely, those issued to same-sex couples after Judge Shelby's ruling.
The Defense of Marriage Act was declared unconstitutional precisely because it "places same-sex couples in an unstable position of being in second-tier marriage." Thanks to the recent actions of Gov. Herbert, married same-sex couples in Utah now find themselves in second-class marriages.
The state's actions demonstrate that Amendment 3 has always been about demeaning the lives and denying legal status to the families of LGBT citizens. The principal purpose of Amendment 3 has always been to impose legal inequality on gay citizens. Today Amendment 3 is literally being used to ignore marriages, not protect them.
Paul C. Burke, John W. Mackay, and Brett L. Tolman filed an amicus brief with the U.S. Supreme Court on behalf of the Utah Pride Center and a national coalition of equality groups last year in its marriage cases.