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US recognizes Utah same-sex marriages: What's behind Holder's unusual move?

Warren RicheyThe Christian Science Monitor

In a highly unusual move, Attorney General Eric Holder announced Friday that the Obama administration would fully recognize the more than 1,000 same-sex marriages that were performed in Utah shortly after a federal judge declared the state’s ban on same-sex marriages to be unconstitutional.

The US Supreme Court issued a stay of the lower court’s ruling two weeks later, bringing to a temporary end the performance of same-sex marriages in Utah and raising questions about the legitimacy of the new marriages.

Utah officials are appealing the judge’s ruling to the 10th US Circuit Court of Appeals. In the meantime, Utah Gov. Gary Herbert has said the state will not recognize the same-sex marriages while the case is still working its way through the courts.

Enter Attorney General Holder.

In a video statement posted on the Justice Department website, Holder said the stay granted by the Supreme Court on Monday had “cast doubt” on the same-sex marriages performed in Utah. He noted that the Utah governor was refusing to recognize the new marriages while the case was still being litigated.

Then the attorney general announced that, unlike Utah, the federal government would fully recognize the newly performed marriages.

“I am confirming today that for purposes of federal law these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” Holder said.

“These families should not be asked to endure uncertainty regarding their status as the litigation unfolds,” he added.

“In the days ahead, we will continue to coordinate across the federal government to ensure the timely provision of every federal benefit to which Utah couples and couples throughout the country are entitled, regardless of whether they are in same-sex or opposite-sex marriages,” Holder said.

In effect, the attorney general is unilaterally extending to gay and lesbian couples married in Utah the benefits flowing from the Supreme Court’s landmark decision last June that struck down the Defense of Marriage Act.

In that decision, the high court ruled that the federal government could not dictate a ban on federal benefits to same-sex couples in those states that had given full recognition to same-sex marriages.

In contrast to the situation in the DOMA case, Utah is among 30 states that passed constitutional amendments banning same-sex marriages.

Nonetheless, the attorney general’s action will have an immediate impact on the lives of same-sex married couples in Utah and their families. Now, for the first time, those couples will be eligible to receive more than 1,200 federal marriage benefits, including filing joint federal tax returns, Social Security coordination, and receiving federal survivor benefits.

What is unusual about the attorney general’s action is that the government routinely waits until an issue has been fully litigated to a final resolution before it takes action rewarding one side in the litigation.

The federal judge in Utah based his decision declaring the state’s same-sex marriage ban unconstitutional on his finding that gay men and lesbians enjoy a fundamental right under the US Constitution to marry each other.

It may be that the US Supreme Court eventually declares that marriage is a fundamental right regardless of sexual orientation. But the high court has not yet done so, and it is unclear how a federal judge in Utah could find a constitutional right the Supreme Court has not yet recognized. That is among the issues that will be examined during the appeal.

Given the ambitious nature of the judge’s ruling, it was also unusual for the judge to refuse a state request to stay his decision until after the holding could be upheld or reversed by a federal appeals court.

Some analysts have suggested that the circumstances of a federal judge allowing hundreds of same-sex couples to immediately wed following his Dec. 20 decision suggests an effort to “create facts” that might make it harder for an appeals court to rule against same-sex couples who are already married.

The attorney general’s actions, facilitating a broad array of marriage benefits to couples in Utah, may also make it more difficult for a court to take those benefits away.

Elizabeth Cooper, a law professor at Fordham University in New York, called Holder’s action “an exceptionally important symbolic, tangible, and strategic move.”

“It undercuts any validity to the state of Utah’s unilateral attempt to assert that these marriages are not valid, as the state attempted to do earlier this week,” she said in a statement.

The New York-based gay rights group, Freedom to Marry, praised Holder’s action as “lawful, predictable, and correct.”

“Even though the 1,000-plus couples married in Utah are encountering unfair treatment and disrespect by their home state and the other remaining states that discriminate, these couples are as married as any couples on the planet,” said Freedom to Marry president Evan Wolfson, in a statement.

The conservative National Organization for Marriage, based in New Jersey, blasted the attorney general.

“It is outrageous that the Justice Department would move so brazenly and publicly to undermine Utah’s standing constitutional provision regulating marriage as the union of one man and one woman,” NOM president Brian Brown said in a statement.

“It is the right of states to determine marriage, and the voters and legislature of Utah have done just that,” he said. “With this move, the Department of Justice under this administration signals that it simply has no regard for the Constitution and the rule of law.”

Mr. Brown said Holder’s action contradicts decisions by the Utah governor and attorney general and represents an overreach of federal authority.

He said Holder was now doing “the very thing the Supreme Court in [the landmark case last June] Windsor v. United States held the federal government could not do – use a definition of marriage for federal law purposes that did not respect the policy choices made by the individual states.”

Brown added: “This determination should be reversed if the State of Utah’s sovereignty – or really any state’s – is to be upheld and respected.”