A few minutes ago, Attorney General Holder announced that Utah same-sex marriages “will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.” This is even though “the governor has announced that the state will not recognize these marriages pending additional Court action.”
This may sound a little strange — didn’t the federal government tell us that marital validity was a question of state law? — but from what I can tell, the strangeness is mostly a consequence of the legal position taken by the state of Utah. Yesterday the Utah Attorney General told clerks that “Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed,” and further emphasized that it wanted to facilitate “same-sex couples who solemnized their marriage prior to the stay to have proper documentation in states that recognize same-sex marriage.” Hence it sounds like Utah takes the view that the marriages were in fact permitted by Utah law during the pendency of the stay litigation.
Whether that view of Utah law is correct is an interesting fed. courts problem, but I can see why the Department of Justice feels entitled to rely on the Utah Attorney General’s statement of Utah law. The federal government’s (mostly) consistent current position is that a marriage counts for federal law purposes if it was lawful under state law at the time of celebration, and today’s announcement appears consistent with that position.
(Of course, whether that more general reliance on state law at the time of celebration is correct is also an interesting question, and the subject of this article.)
SECOND UPDATE: I should also note that there’s no actual evidence in Holder’s statement that he was relying in yesterday’s representations about Utah law. I have assumed that that’s what’s going on because it seems like it would make the most sense given the information we have — but “assume that people have sensible reasoning” is not always a sure guide in this area.