U.S. District Judge Dale A. Kimball ruled on May 19 that the state of Utah must recognize the same-sex marriages that were performed in the state from December 20 to January 6. Another federal district judge, Robert Shelby, ruled on December 20 in Kitchen v. Herbert that Utah’s ban on same-sex marriage was unconstitutional. Judge Shelby, and subsequently the 10th Circuit Court of Appeals, refused to stay that decision pending appeal and more than 1300 marriage licenses were issued to same-sex couples before the U.S. Supreme Court responded affirmatively to the state’s request for a stay pending appeal. After the Supreme Court issued its stay, Governor Gary Herbert declared that the same-sex marriages that had been performed were “on hold” as the stay had “revived” the state’s marriage ban. In this ruling in Evans v. State of Utah, Judge Kimball found that the state is barred by the Due Process Clause of the 14th Amendment from putting legally valid marriages “on hold,” but temporarily stayed his own ruling for 21 days to give the state an opportunity to appeal to the 10th Circuit.
There was some confusion on the part of the state government after Judge Shelby issued his injunction against the state’s marriage ban. Some clerks began issuing licenses quickly, while others hesitated, awaiting instructions from the state government. Finally, upon the attorney general’s advice that clerks who refused to issue licenses could be held in contempt by the federal district court, many clerks fell into line and issued more than 1300 licenses, as state officials announced that such marriages were valid. However, when the Supreme Court issued its stay and the governor declared that those marriages were now “on hold” because the state could not recognize them under the “revived” laws, the ACLU filed suit on behalf of several recently-married couples, seeking an injunction requiring the court to recognize the marriages.
The result was to interfere with the ongoing efforts by recently-married same-sex couples to assert their rights, including several adoption proceedings that were thrown into limbo as Utah trial judges were uncertain how to proceed. Indeed, the state is facing the threat of a contempt proceeding from one trial judge who issued an adoption order that state officials are refusing to honor by issuing an appropriate birth certificate, and there are already questions pending at the Utah Supreme Court about the status of these marriages. The court has temporarily stayed various adoption proceedings while it decides whether the state must recognize the marriages. It will be interesting to see what weight it accords to the federal district court’s ruling on vested rights, which depends on that court’s reading of Utah precedents.
The ACLU filed its lawsuit in state court, but the state removed the suit to federal district court, and opposed the plaintiffs’ motion to certify to the Utah Supreme Court the question whether couples legally married under Utah law have vested rights in their marriage that could not be taken away by the state without a compelling interest. The plaintiffs moved for a preliminary injunction, arguing that as a matter of law their vested rights were being abridged by the state for no valid reason. The state, in response, argued that the Supreme Court’s stay had a retroactive effect, restoring the marriage ban going back to December 20, 2013, thus rendering the marriages invalid. And, after having opposed the plaintiff’s motion to certify the question to the Utah Supreme Court, the state reversed course and urged Judge Kimball to certify virtually the same question, but Judge Kimball refused to do so, finding that Utah precedents are clear on the question of vested marriage rights.
Judge Kimball found that the state’s arguments were contradicted by well-established principles of Utah law as well as the Due Process Clause of the 14th Amendment. Judge Kimball placed heavily reliance on the California Supreme Court’s ruling in the somewhat analogous situation created when California voters adopted Proposition 8 in November 2008 after thousands of same-sex couples had married in the five months after that court’s marriage equality decision went into effect in June 2008. In that case, Strauss v. Horton, the California Supreme Court said that those who had married at a time when same-sex marriage was legal had vested rights in their marital status and everything that went with that status, which could not be taken away by a subsequent constitutional amendment. Kimball found that Utah cases dating back to the 19th century had also taken the position that once a couple was legally married, they had vested marriage rights protected against retroactive rejection by the state.
Utah’s attorneys argued that the California situation with Proposition 8 was distinguishable. The Utah licenses were issued in compliance with an injunction by a single federal trial judge that the state had promptly appealed. Thus, they said, it was not in that sense a final order in the case, unlike the California Supreme Court’s ruling on marriage equality, which could only be overturned by a state constitutional amendment. (That amendment was subsequently ruled unconstitutional by a federal district court in the famous Perry v. Schwarzenegger case, which went into effect last June after the U.S. Supreme Court ruled that the proponents of Proposition 8 did not have standing to appeal the court’s ruling, which had not been appealed by state officials.) Judge Kimball was not persuaded by this distinction, and he also pointed out the strong bias against retroactive application of new legal rulings. The Supreme Court did not issue any explanation about the impact of the stay it issued on January 6, and Judge Kimball pointed out that such an action would not be deemed to have any sort of retroactive effect unless the Supreme Court had voiced such an intention.
He also found that there were strong Utah judicial precedents concerning vested rights in marriage, holding that such rights vest when the marriage was performed. According to Judge Kimball, from the time Judge Shelby issued his injunction until the time the Supreme Court stayed the injunction pending appeal, it was legal for same-sex couples to marry in Utah, and as soon as any such marriage was performed, the couple had vested rights in the marriage that could not be abridged by the state. He pointed out that this was consistent with the Supreme Court’s DOMA ruling, U.S. v. Windsor. “The Windsor Court held that divesting ‘married same-sex couples of the duties and responsibilities that are an essential part of married life’ violates due process,” he wrote.
Judge Kimball went through the wording of the Utah constitutional and statutory same-sex marriage bans, and found that all of those provisions were stated in the present tense and made no mention of retroactive application. Thus, if one construed the Supreme Court stay to have “revived” those provisions while the case was on appeal, there was no basis to apply them retroactively.
“The State argues that application of Utah’s previously existing marriage bans after the Supreme Court’s Stay Order is not retroactive application of the bans because the laws were enacted long before the Plaintiffs entered into their marriages,” he wrote. “However, this argument completely ignores the change in the law that occurred. The marriage bans became legal nullities when the Kitchen decision was issued and were not reinstated until the Stay Order. In addition, the State’s argument fails to recognize that Utah law defines a retroactive application of a law as an application that ‘takes away or impairs vested rights acquired under existing laws in respect to transactions or considerations already past.’ Under this definition, the State’s application of the marriage bans to place Plaintiffs’ marriages ‘on hold,’ necessarily ‘takes away or impairs vested rights acquired under existing law.” Judge Kimball concluded that even if Judge Shelby’s decision is eventually reversed and the injunction dissolved, the marriages that were performed would remain valid under the vested rights theory and the strong policy against retroactive application of law.
After analyzing the factors applied in the 10th Circuit to determine whether a preliminary injunction should be issued, Judge Kimball found that all the factors had been satisfied. “Plaintiffs have demonstrated a clear and unequivocal likelihood of success on the merits of their deprivation of federal due process claim,” he wrote, and he found that they had also established the necessary irreparable harm if their marriages were not recognized. On the other hand, he found, “The State has no legitimate interest in depriving Plaintiffs of their constitutional rights,” and he also found “no harm to the State based on an inability to apply the marriage bans retroactively.” As to the public interest, “the court agrees with Plaintiffs that the public is well served by having certainty about the status of Plaintiffs’ marriages.”
The state’s lawyers had asked the court to stay its preliminary injunction so that the state could appeal it to the 10th Circuit. Judge Kimball concluded that “the State has not met its burden of establishing the factors required for a stay pending appeal,” but decided to exercise discretion to grant to the state a “limited 21-day stay during which it may pursue an emergency Motion to Stay with the Tenth Circuit.” His explanation: “The court recognizes the irreparable harms facing Plaintiffs every day. However, the court finds some benefit in allowing the Tenth Circuit to review whether to stay the injunction prior to implementation of the injunction. Therefore, notwithstanding the many factors weighing against a stay, the court, in its discretion, grants the State a temporary 21-day stay.” However, unless the 10th Circuit responds favorably to the state’s request, Judge Kimball’s order will go into effect requiring recognition of the marriages.
The plaintiffs were represented at the court’s hearing on the preliminary injunction motion by attorneys Erik Strindberg, Joshua A. Block and John Mejia.
Judge Kimball was appointed to the federal district court by President Bill Clinton in 1997 and took senior status and a reduced caseload in November 2009 upon reaching age 70. He teaches at Brigham Young University Law School, and is an active member of the Mormon Church, in which he has held various leadership positions.