Republican Utah Attorney General Mark Shurtleff has authored a brief on behalf of 10 state attorneys general asking the Chief Justice of the California Supreme Court to defer on their decision to legalize gay marriage in the state.
In the 15 page document, dated May 30, Shurtleff and his colleagues said they take no position on the merits of the California high court’s May 15 ruling and support the right of each state to define its own marriage laws. Rather, the attorneys general have “genuine concerns” over how the ruling will impact the courts in their home states. At the crux of the attorneys’ general argument is the possibility of gay couples marrying in California and then suing for legal recognition in their home states. In doing so, they could cite a piece of common law known as the “recognition issue,” which states: “A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state” that has the closets relationship to the spouses.
So far, according to Shurtleff, such suits have been rare across the United States because the only other state to offer gay marriage, Massachusetts, cannot marry out of state gay couples thanks to a 1913 statute. The statue, brought to light by then-Gov. Mitt Romney in 2004, forbids couples from marrying in the state if their marriages would be illegal in their home state. As California lacks such a law, Shurtleff said the potential for litigation is much greater.
Currently, Utah law and its constitution prohibit gay marriage, as do laws or constitutional amendments in the states from which the signing attorneys general hail –that is, Alaska, Colorado, Florida, Idaho, Michigan, Nebraska, New Hampshire, South Carolina and South Dakota.
Further, the attorneys general caution that a hasty move on the part of California’s Supreme Court could create further legal problems if California voters approve a ballot measure in November that would ban gay marriage in the state’s constitution.
“Out of our commitment to the principles of ‘our federalism,’ we would simply shoulder that burden [of gay marriage lawsuits in other states] without comment – if it were not for the prospect that in little more than five months the legal meaning of marriage in California may return to ‘the union of a man and a woman,’” Shurtleff wrote.
Critics of the brief – including openly gay state Sen. Scott McCoy and gay rights group Equality Utah – have called it unnecessary given Utah’s laws, and an attempt by other states to tell California what to do.
“It's ridiculous for 10 attorneys general to tell 54 million Californians ‘We're going to suspend your constitutional rights because it might be inconvenient for us to deal with a couple of lawsuits that are speculative at best,’” McCoy, D-Salt Lake City, told the Salt Lake Tribune.