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U.S. judge asked to order Utah to recognize gay marriages

By Jennifer Dobner

SALT LAKE CITY (Reuters) - Lawyers for four same-sex couples who wed in Utah while a ban on gay marriage was briefly lifted urged a U.S. judge on Wednesday to force the conservative, heavily Mormon state to recognize their nuptials while the legal battle over marriage plays out in an appeals court.

Utah became the 18th U.S. state to extend marriage rights to same-sex couples when a federal district judge, Robert Shelby, ruled in December that a state ban on gay matrimony was unconstitutional. The decision was put on hold by the U.S. Supreme Court, but not before more than 1,300 gay couples had tied the knot.

The Utah governor's office has said the state cannot recognize those weddings - or grant those couples any marriage rights - until an appeal of the case is decided by the 10th U.S. Circuit Court of Appeals in Denver.

That prompted a separate lawsuit from four couples who say waiting for marriage recognition denies them their constitutional rights, leaves their lives in limbo and humiliates their families.

"The fact is, these people are legally married," said American Civil Liberties Union attorney Joshua Block, whose organization is representing the four couples. "The plaintiffs need to know their legal status."

The ACLU has asked U.S. District Judge Dale Kimball for a preliminary injunction ordering Utah to immediately honor marriages performed after Shelby's December 20 ruling, and to grant all same-sex married couples the same rights afforded heterosexual couples and their families.

Utah officials contend they cannot legally do so because such recognition remains barred by the 2004 voter-approved initiative defining marriage in the state constitution as a union exclusively between a man and a woman.

On Wednesday state attorneys said they were not seeking to void marriages performed in the 17 days between Shelby's lifting of the ban and the January 6 stay of his decision, but to defend Utah's refusal to recognize them for the time being, and they asked Kimball to dismiss the lawsuit.

"It's reasonable for the state to take that position," Assistant Utah Attorney General Joni Jones said during a hearing before Kimball in Salt Lake City's federal courthouse.

The ACLU's Block said the eight plaintiffs in the case have all been harmed by Utah's refusal to recognize their marriages because their ability to make decisions about a host of issues - from healthcare directives and major financial decisions to second-parent adoptions of their children - had been disrupted.

ADOPTION

Matthew Barraza and Tony Milner, for example, went to court the day after their wedding so Milner could legally adopt the young son he already parents with Barraza. But the case was put on hold when the Utah Attorney General's Office advised the juvenile courts not to proceed until after the gay marriage appeal had run its course.

Block said that delay left the family mired in legal uncertainty and relegated them to a second-class-citizen status.

"Their son is being told indirectly that his family is different and his family is not as good as other families," Block said during oral arguments that lasted 90 minutes.

Judge Kimball seemed to focus questions he posed to the attorneys on whether the state could retroactively strip couples of what were presumably legal marriage rights.

"They had ceremonies, words were said, (marriage licenses) were issued. Does that mean nothing?" Kimball asked Jones.

"It does not mean nothing," Jones said. "But it also does not mean the rights were vested permanently or in a way that they could not be voided."

Jones said the state fears that if Shelby's decision were reversed on appeal, same-sex married couples would suffer greater harms because the very basis of their marriages would be undermined.

A hearing in the appeal is set for April 10. Utah will likely move to invalidate the marriages if it prevails in the case, she said.

Block said the outcome of the appeal should have no bearing on same-sex couples whose marriages were legally performed in the aftermath of Shelby's ruling, adding there was no legal precedent for retroactively invalidating a marriage.

"You don't undo a marriage that has taken place," Block said.

It was not immediately clear how soon the judge might issue a ruling.

(Editing by Cynthia Johnston, Steve Gorman and Eric Walsh)

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