Op-ed: Stay of Utah marriage decision creates uncertainty

Since the Supreme Court decided to stay Judge Robert Shelby's ruling, there has been talk about what will happen to the marriages that have already been performed—some 1,300 same-sex couples.

First, recall that the Supreme Court has only stayed, i.e. temporarily stopped, the legal effect of Judge Shelby's ruling. It has not decided the issue of whether denying same-sex couples the right to marry is a violation of equal protection and due process. Even still, the stay can, as a legal matter, create complications.

A few caveats before I discuss those: First off, my views can only be considered well-reasoned speculation, at best. There appears to be no precedent for retroactive invalidation, and no one really knows the exact answer to this question. In addition, I'm only discussing what I think can happen, not what should happen — that's an entirely different question.

To begin with, the effect of Judge Shelby's ruling, which declared Utah's Amendment 3 unconstitutional, was to permanently stop Utah from preventing same-sex couples from marrying. Regardless of whether you agree or disagree with Judge Shelby's ruling, he did what he is tasked to do: attempt to determine the meaning of the Constitution, and then apply that interpretation to Utah's laws.

Since the famous case of Marbury v. Madison, judicial review has been a staple of our judicial system. In Marbury, Chief Justice John Marshall said that "[i]t is emphatically the province and duty of the judicial department to say what the law is," and that "a law repugnant to the Constitution is void."

The above, along with the Supremacy Clause, means that Shelby's ruling was law. I say "was law" because when the Supreme Court granted the stay on Monday, it (in its own language) stayed the "permanent injunction issued by [Judge Shelby]." The permanent injunction, in part, prevented Utah from enforcing Section 30-1-2 of the Utah Code, which states: "The following marriages are prohibited and declared void ... (5) between persons of the same sex."

Since the stay has been granted by the Supreme Court, presumably Utah can, at least for now, again enforce Section 30-1-2; indeed this is what would have happened had Judge Shelby granted the stay.

If this is all correct, then Section 30-1-2 has been reinstated, which means that marriages between persons of the same sex are again "prohibited and declared void." This language is fertile ground for legal semantics, in particular the word "void."

In other words, if Section 30-1-2 only said that marriages between persons of the same sex are "prohibited," then it would be clearer going forward, after the Supreme Court's stay, that no more marriages of same-sex couples will be performed, but that the ones already performed are valid.

Here, however, the language says that they are "prohibited and declared void"; the latter language roughly means "to have no legal force or validity." This would suggest that the state can attempt to invalidate the marriages that have already been performed.

This alone does not resolve all the questions. Do the state's lawyers have to affirmatively attempt to invalidate the marriages or are they automatically invalid? If the state's lawyers have to take steps to invalidate the marriages, how would they go about doing that (how does that look as a practical matter)?

Does invalidating the marriages open a can of constitutional worms (like deprivation of a life or liberty interest without due process), and, as a corollary, more lawsuits? And, the most important question for many people, even if the state can invalidate the marriages, should it?

Zaven A. Sargsian, a Salt Lake City attorney, is a graduate of S.J. Quinney College of Law and an associate attorney at

Shumway Van & Hansen.