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In its silence on the issue of same-sex marriage, experts said Monday, the U.S. Supreme Court spoke loud and clear: Let them marry.
Gay and lesbian couples in Utah, and 10 other states, were granted the right to wed Monday after the nation's high court declined to hear appeals from five states trying to revive their bans on same-sex unions.
The unexpected move — a denial of certiorari in seven appeals from five states — effectively legalized gay marriage in 11 new states, making same-sex unions legal in most of the country for the first time in history.
"We are thrilled," plaintiff Derek Kitchen said at a news conference. "Families in Utah and states in the 10th Circuit and other states across the country can plan our lives like every other person in the country now. We can have a marriage and have children and go about our daily lives without worrying about being treated differently by our own state government."
In Utah, gay and lesbian couples began marrying about 11 a.m. — less than an hour after the 10th Circuit Court of Appeals issued a mandate lifting a stopgap it had put on any movement toward the legalization of same-sex marriage. The appellate court's mandate ordered states over which it presides to stop enforcing their bans on same-sex unions, which in June the appeals court found violate the 14th Amendment's guarantees of equal protection and due process.
"Not to issue [a mandate] would be a violation of the 10th Circuit's mandate and a violation of these couples' constitutional rights," Salt Lake County District Attorney Sim Gill told The Salt Lake Tribune. "We've given the go-ahead to begin issuing [marriage] licenses right away."
Gov. Gary Herbert expressed his disappointment with the court's decision as he announced that he had sent a letter to his Cabinet members Monday morning ordering them to recognize all legally performed marriages and extend marital benefits to any lawfully wedded couple who applies.
"It deserved a hearing at [the Supreme Court] level to argue, 'Do states have the authority to define marriage? And is there, in the U.S. Constitution, a right that we have not seen before in 225-plus years: a right of same-sex marriage?' " Herbert said in a 15-minute news conference Monday. "The truth is there are a lot of questions. This is historical. This is groundbreaking. This is of great significance to our culture and to the laws of the land."
Attorney General Sean Reyes did the same, ordering county clerks and attorneys to recognize all gay marriages.
"We are a state and a people who believe in upholding the law of the land, and that has been determined for us today in a way that may not be satisfactory for some, but it is the law of the land," Reyes said at the same news conference. "We are all Utahns. I hope we will exercise a great deal of kindness, caring and understanding."
Same-sex spouses can apply for Utah benefits by following the same processes that opposite-sex couples have for years, Herbert said.
This across-the-board recognition renders moot another lawsuit pending against Utah, in which married same-sex couples challenged the state to imbue their unions with the same rights and benefits as their opposite-sex counterparts.
John Mejía, the American Civil Liberties Union lawyer representing the plaintiff couples in the marriage-recognition case, said he would be surprised if the state did anything but drop the case.
The nation's nine justices did not comment after rejecting appeals from Indiana, Oklahoma, Utah, Virginia and Wisconsin.
No other states had cases addressing same-sex marriage before the high court, whose decision stopped short of resolving the question of whether states can constitutionally limit marriage to one man and one woman.
But constitutional law experts said Monday that although the court's rejection is not a ruling, it's a clear indication as to how the justices are thinking.
"If they had wanted to reverse the tide on same-sex marriage, why would they create this tricky, troubling question of undoing tens of thousands of marriages that are now going to become legal in 30 states?"asked University of Utah law professor Cliff Rosky, who also sits on Equality Utah's board of directors. "If their message was 'stay tuned,' they wouldn't have sent all of these states home. By handing a victory to 11 states, they're saying they're not interested in stopping same-sex couples from marrying.
"If the court is worried about this issue, then don't legalize it in 11 states in a single day. [The justices] were under no pressure, no urgency. They didn't have to act. But they did."
There are several reasons the justices may have wanted to duck the issue of states' same-sex marriage bans for now, experts said. Liberals on the bench may have wanted to stay out of the fray because, since the high court overturned the federal Defense of Marriage Act, lower courts have largely ruled to reject such bans. Conservatives may have wanted to stay away because it may seem like a losing position.
But, eventually, if a circuit court were to uphold a state's right to define marriage as a union between one man and one woman, for example, the justices may have to intervene.
If, or when, that day comes, experts agreed, Monday's decision makes clear how the court would rule: to overturn bans on gay marriage.
"Logistically, it would be very difficult to go back and say states can ban same-sex marriage again," said John Marshall Law School constitutional professor Steven Schwinn. "My guess is that what the court is doing is sitting back and letting the circuits do their job on this issue and letting marriage equality unfold circuit by circuit.
"Any judge looking to rule on this has to be seeing the reality of what's happening and saying to themselves, 'Look, this marriage equality thing is happening.' It's harder and harder to write an opinion that they have to know on some level would throw a monkey wrench into what a majority of states are doing, into thousands of marriages, and the direction the country is going."
It takes just four of the nine justices to vote to grant a case certiorari and allow it to be heard. Monday's order did not indicate how they voted on the question of these appeals.
Experts and advocates on both sides believed the Supreme Court would take up one — or several — of the same-sex marriage cases and settle the issue once and for all.
"Now, I don't see how they could go back and rule any other way than to overturn bans [on same-sex marriage] in the future," said Carl Tobias, federal law expert and professor at the University of Richmond School of Law. "To do that would create this incredible patchwork. I think what they did today tells us where they're going. I can't imagine they don't understand what it means: Marriages are starting. The knife is slicing one way."
The Supreme Court's denial put an end to Utah's battle to defend its voter-approved ban, Amendment 3, which, Reyes said Monday, the state spent about $600,000 defending.
"The case was weak from the beginning," said Democratic candidate for Attorney General Charles Stormont. "We can't remove or restrict rights by legislation for anyone. I would not have appealed."
Among the rights married same-sex couples will be eligible to receive in Utah is the right to adopt children, which has been challenged in state court and informed U.S. District Judge Dale A. Kimball's May decision to order Utah to extend spousal benefits to all married residents.
More than 1,200 Utah same-sex couples wed after the Dec. 20, 2013, ruling by U.S. District Judge Robert Shelby, striking down the state's gay-marriage ban as unconstitutional. Shelby's ruling was stayed Jan. 6 by the Supreme Court as the state appealed.
Those couples married during that 17-day window have been in a self-described state of legal limbo since January, waiting to see if the state would recognize their unions and extend benefits.
Peggy Tomsic, the Salt Lake City-based lawyer representing the three couples in Utah's historic same-sex marriage case, said Monday that her marriage is one of them.
"I was married to my wife in December," Tomsic said. "What it means is that, you know what? We're citizens just like everybody else. What a surprise. That's what the 14th Amendment says."
Plaintiff couple Kody Partridge and Laurie Wood also married during that window and said at a news conference Monday they are excited to again be legally married in Utah.
"This is a day of celebration and victory for all of Utah, for all families," Partridge said, as Wood stood behind her, rubbing her shoulders and squeezing her hands. "Now it's not 'maybe — well kind of.' We are married."
"I was getting tired of saying we had only been married for 17 days," Wood said at a news conference held at the law offices of Magleby & Greenwood, which represented the three plaintiff couples in their fight to topple Amendment 3 once and for all. "I love being married and love calling Kody my wife and being married to her. We are married and our state will recognize that marriage."
Plaintiff Kate Call, whose wife, Karen Archer, has been fighting a terminal illness, said Archer had been "holding on" until they could be legally recognized in their home state of Utah and receive benefits, including the ability to make medical and end-of-life decisions.
"We're delighted that we don't have to wait any longer," Call said. "We're getting married, folks!"
When same-sex marriage was briefly legalized after Shelby's decision, there was a rush on marriage licenses from couples who didn't know how long they had. There was less urgency Monday as same-sex couples seeking marriage licenses trickled into county clerks' offices.
Salt Lake County had doled out the most same-sex marriage licenses: an estimated number of about 15 as of 5 p.m. Weber County had given out two, while Utah, Davis and Summit didn't see any gay couples at all.
The first same-sex couple in Salt Lake County to seek a marriage license after the Supreme Court's decision were two women, Kelli Frame and Suzanne Marelius. They've been together for five years. As the clerk pulled up the form on a computer screen, Frame put her arm around Marelius.
"I'm gonna be the groom?" she mused.
She said she never thought the day would come.
"I never put myself in the category of people who would get married," she said. But now, they're planning a fall wedding — in two weeks.
State Sen. Jim Dabakis, D-Salt Lake City, who is openly gay and married his husband in December, hugged the two women in congratulation.
Meanwhile, across the nation, other cases are still underway. Two federal appeals courts could issue decisions any time in same-sex marriage cases. Judges in the Cincinnati-based 6th Circuit were weighing pro-gay marriage rulings in Kentucky, Michigan, Ohio and Tennessee, while judges in the 9th Circuit in San Francisco were considering Idaho and Nevada restrictions on marriage.
The state's most prominent conservative think tank, the Sutherland Institute, issued a statement Monday bemoaning the high court's decision.
"Children are entitled to be raised by a married mother and father," the statement read. "Sutherland Institute is deeply disappointed that the Supreme Court has failed to correct the lawlessness of lower courts that have deprived the people of Utah and other states their ability to protect that entitlement. While it appears that Utah is being forced by the federal courts to recognize same-sex marriages, there are still other states whose laws the courts have not yet disrupted."
Salt Lake City Mayor Ralph Becker, who performed a number of marriages during the 17-day window during which marriages were legal, issued this statement Monday: "Today is a historic day for equal rights in Utah. I wish to congratulate all of the married couples in Salt Lake City who will now have their relationships legally recognized. This is a momentous occasion for civil rights in our state and nation."
Tribune reporters Erin Alberty, Annie Knox, Matt Canham and Kristen Moulton contributed to this story.
Twitter: @Marissa_Jae —
Trib Talk chat
To watch Monday's online chat with Jennifer Napier-Pearce, Salt Lake County District Attorney Sim Gill, Bill Duncan of the Marriage Law Foundation and University of Utah law professor Emily Chiang regarding the Supreme Court decision's impact on Utah, go to http://www.sltrib.com/sltrib/blogstribtalk/58484727-71/tribtalk-sltrib-marriage-com.html.csp.
Still have questions? Join Trib Talk on Tuesday, when Napier-Pearce will talk with newsmakers about what Utah laws need to be fixed to conform with the new law of the land.
On Tuesday at 12:15 p.m., Sen. Jim Dabakis and Rep. Kraig Powell will join Napier-Pearce to discuss the broad impact of Monday's decision and how state legislators will approach the legal revamp in January.
Watch this online video chat live at sltrib.com. You can also join the discussion by sending questions and comments to the hashtag #TribTalk on Twitter and Google+ or texting 801-609-8059.