Confusing Advice from Utah Governor on Marriage Laws

by Ed Whelan

The Utah governor’s office has issued an e-mail directive to state officials that may raise more questions than it answers. In one sentence, the directive appears to take the mistaken position that “the legal status of those same-sex marriages” is a matter that is exclusively “for the courts to decide.” But in the very next sentence, it “direct[s] state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.”

The directive sets forth this general proposition:

Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued.

I’m not sure that I understand what that means, and the accompanying example about name changes on driver’s licenses doesn’t help much. It’s one thing to say that name changes that have already been completed “should not be revoked.” A name change is a one-time act that can occur irrespective of marriage. But does the general proposition mean, say, that a state employee who entered into a supposed marriage and then added his supposed spouse to his employee-benefit plans is entitled to keep that person on his plan? Or is the employee in that situation continually “in the process of availing [himself] of state services related to same-sex marital status”? If the former, how is that continuing recognition of the person as a spouse consistent with Utah’s marriage laws?

No good deed goes unpunished. In dealing “carefully and considerately” with the chaos that Judge Shelby’s reckless refusal to stay his decision unleashed, Utah state officials should be careful not to undermine their substantive defense of their marriage laws.

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