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Same Sex Unions Still in Limbo After 10th Circuit Extends Stay

Photo courtest Matthew Barraza
Matthew Barraza and Tony Milner with their son on their wedding day.

The fate of about 1300 same sex marriages in Utah is now in the hands of the US 10th Circuit Court of Appeals. The Court granted a temporary stay of a US district court’s order to recognize same-sex marriages performed in Utah during a 17-day window when the unions were allowed. The state Attorney General’s Office requested the stay Thursday and filed a Notice of Appeal on Evans versus State of Utah on Wednesday.

Assistant Attorney General Kyle Kaiser says the state is filing an appeal because the question of whether any same sex marriages are constitutional in Utah is still uncertain. Kaiser says the office determined that the Evans versus State of Utah case is too intertwined with the case of Kitchen vs. Herbert. That’s the case that challenge’s the state’s law banning same sex marriage and has already been appealed to the 10th circuit. The three judge panel hasn’t issued a decision yet.

“It’s the state’s position that if Kitchen is overturned then the legal basis for those marriages under Utah law also evaporates,” Kaiser says.  

“Well, I think that that argument is wrong,” says John Mejia, legal director of the ACLU of Utah and the plaintiffs’ attorney in Evans versus State of Utah. He says US district judge Dale Kimball has already ruled those marriages are binding.

“Whether Kitchen vs. Herbert is upheld or struck down is not of any moment to this case, Mejia says. “Win or lose in Kitchen, these marriages have vested rights. These marriages took place under valid marriage licenses under the law as it stood at the time they were granted.”

Plaintiff Matthew Barraza says he’s disappointed that the state is appealing the ruling but holds out hope that his marriage to Tony Milner will one day be recognized in Utah, and that Milner will become a legal guardian for their adopted son.

“We’re just trying to do what’s best for our family and our son and want him to be protected just like any other kid,” Barraza says. “So in a lot of ways, it’s just hard to understand this latest appeal, but we are in it for the long haul and hopeful that eventually this will all be sorted out… and will be sorted out in our favor.”

The plaintiffs have until June 12th to respond to the stay motion. Then the court will decide whether there will be a more permanent stay until the appeal is resolved.

Andrea Smardon is new at KUER, but she has worked in public broadcasting for more than a decade. Most recently, she worked as a reporter and news announcer for WGBH radio. While in Boston, she produced stories for Morning Edition, Marketplace Money, and The World. Her print work was published in The Boston Globe and Prior to that, she worked at Seattleââ
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