Bench Memos

Utah AG’s Wildly Incompetent Advice

As I’ve indicated, I don’t think that the Utah attorney general’s bizarre legal statement yesterday justifies Attorney General Holder’s declaration that the federal government will treat the supposed marriages in Utah as marriages. But the statement is a marvel of confusion and incompetence that virtually guarantees that the marriage fiasco in Utah will mushroom.

The question that Utah attorney general Sean D. Reyes is addressing is whether county officials should complete and provide marriage certificates for the same-sex couples that entered into the supposed marriages between December 20, 2013 (the date of the district-court ruling invalidating Utah’s marriage laws) and January 6, 2014 (the date of the Supreme Court order blocking that ruling from continuing in effect).

The Utah constitution provides that “Marriage consists only of the legal union between a man and a woman” and that “No other domestic union … may be recognized as a marriage.” Utah statutory law further provides that supposed marriages “between persons of the same sex” are “prohibited and declared void” and that it is state policy “to recognize as marriage only the legal union of a man and a woman.”

So now that these laws are back in force, it ought to be a simple matter to conclude that county officials should take no further actions that would treat the supposed marriages as marriages.

Reyes, however, writes:

Although the State of Utah cannot currently legally recognize marriages other than those between a man and a woman, marriages between persons of the same sex were recognized in the state of Utah between the dates of December 20, 2013 until the stay on January 6, 2014. Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed.

When Reyes states that the “marriages between persons of the same sex were recognized in the state of Utah” during that period, surely he doesn’t mean that such supposed marriages were recognized under state law. It was only the district-court ruling holding that the federal Constitution overrode those state laws that led state officials to ignore those laws. One has to wonder what “Utah law” Reyes was analyzing.

It gets worse. In the very next paragraph, Reyes concocts a distinction between “an administrative function” and “a legal function.” Believe it or not, he apparently doesn’t understand that state administration is governed by state law and that the state marriage provisions set forth above ought to govern how county officials act in processing marriage certificates. (He even seems to think that it’s part of his job to facilitate how “same-sex couples who solemnized their marriage” can get recognition of that supposed marriage “in states that recognize same-sex marriage.”)

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