Utah judge may hold AG in contempt over gay adoption

Same-sex couples fighting for the right to adopt children may force the Utah Supreme Court to address one of the biggest legal issues in the state: Whether the Utah marriages of more than 1,300 gay couples are valid.

A state court judge this week ordered that the Utah Attorney General's Office and several government agencies appear in court on June 16 to explain why they have refused to honor these adoptions.

If they refuse, or provide an inadequate response, Attorney General Sean Reyes, Executive Director of the Utah Department of Health, W. David Patton, and the State Registrar of the Office of Vital Records, Janice Houston, may be held in contempt of court — a crime punishable by incarceration, a fine or both.

"[These officials] must appear and show cause why they should not be held in contempt for their willful disregard and refusal to obey the Decree of Step-Parent Adoption," wrote 3rd District Judge Andrew Stone.

In response to this summons, the Attorney General's Office asked the Utah Supreme Court for the second time Thursday to issue an emergency order that would halt all adoption orders until the high court rules on whether these adoptions —and, by extension, the marriages of the couples seeking step-parent adoptive rights — are legal.

They asked the court in April to do the same, but despite the "emergency relief" request, the court did not take up the issue expeditiously — or at all.

Last month, the state filed petitions that said judges who granted such adoptions "abused [their] discretion" by approving an adoption for couples and ordering the Utah Department of Vital Records and Statistics to issue new birth certificates for the couples' children.

Supporters of same-sex marriage have accused the state of "tearing families apart" for political reasons, but Assistant Attorney General Joni Jones, who oversees the litigation division of the office, said the state is seeking clarity, not discord.

After U.S. District Judge Robert J. Shelby historically ruled Utah's ban on same-sex marriage unconstitutional on Dec. 20, more than 1,300 gay and lesbian couples were wed in Utah before the U.S. Supreme Court issued a stay, halting the marriages.

Those couples have since lived in a state of limbo, left to grapple with conflicting and often-confusing answers to the legal status of their unions.

Although Gov. Gary Herbert declared that the state would not recognize the marriages — though they could be recognized in other states where same-sex marriages are legal — married gay and lesbian couples were allowed to file joint state and federal tax returns for the first time this year and will receive federal benefits.

Utah contends that they aren't recognizing the marriages because their hands are tied.

"Once the U.S. Supreme Court issued the stay of Judge Shelby's injunction, what that did was put Utah's law into effect again, including the part that says the state shall not recognize or give marriage-like benefits to any same-sex union. Under that law, it's the state's view that we aren't allowed to recognize or give benefits to same-sex marriages," Jones said. "We're the state, we comply with the law. But we felt the order required us to violate current Utah law."

But gay marriage advocates say it's a convenient excuse that allows state officials to retain the status quo at the expense of Utah families.

"The Utah attorney general doesn't get to declare what the law is; only the courts of Utah can declare Utah law," said Cliff Rosky, University of Utah law professor and Equality Utah chairman. "Nevermind the personal toll this takes — what could be more devastating to a family than looking at a child and her mother and saying, 'You're not really a parent; that's not really your parent.' When the law has already said yes, she is."

According to a motion filed by the plaintiffs in one of the three adoption cases in question in 3rd District Court, the state was given notice that these adoption proceedings were underway in January, at which time they were given an option to intervene and object.

In the 75 days between when they were notified and when the first adoption was finalized by the court, the Attorney General's Office said nothing.

That window of time discredits the state's call for "emergency" intervention by the Utah Supreme Court, wrote attorney Shane A. Marx, who is representing one of the plaintiff couples seeking adoption rights.

"Simply put, the state had 75 days of notice, so there can be no emergency," he wrote. "The Decree of Step-Parent Adoption has not been stayed, and it remains in full force and effect. The state's refusal to obey the [order] is a blatant disregard for this court's authority and is grounds for contempt."

Jones told The Tribune on Thursday that the office's lack of action when the adoptions were pending was not an endorsement, and their actions today are not an objection to the adoptions themselves.

"We did not want to be a party in the adoption because we have no position or opinion on the best interest of the child," she said. "It would not be appropriate or proper. … What our interests are is whether, under law, we can allow the recognition and give benefits to same-sex marriage."

No matter how the state chooses to characterize its request, said Utah Democratic Sen. Jim Dabakis, the result it has on Utah families is irrefutable.

"You can't imagine what it's like when you wait years and years to finally be united as a family and then a judge says OK, and there's great celebration and tears and joy, and finally your family and your children have the same protection as every other child in the state of Utah," Dabakis said. "And then, declaring himself chief prosecutor, judge, jury and everything else, the attorney general says, 'No, I'm disallowing that adoption on a whim.' And that's what he did by ordering these state agencies to not follow the procedures to complete a judge-ordered adoption."

Dabakis, who is openly gay and was married in the 17-day window, accused Reyes of using the same-sex marriage case to gain political ground rather than represent the best interest of all Utahns.

That's not the case, the AG's Office said in a written statement.

"The state is not attempting to undo adoptions, restrain custody rights, nor suggest that these families are not serving the best interest of their children," spokeswoman Missy Larsen wrote. "What the State is doing is exercising its right to seek clarification from Utah's highest court as to whether it can issue amended birth certificates."

A ruling from the 10th Circuit Court of Appeals, which heard arguments from the state seeking to overturn Shelby's ruling last month, would also lend clarity to the question of whether same-sex marriage in Utah may, ultimately, be legalized.

The federal court has put the case on an expedited calendar and could rule any day.

It's widely anticipated that after the appeals court rules, the case will be appealed to the U.S. Supreme Court along with several similar cases from around the country.

mlang@sltrib.com

Twitter: @Marissa_Jae