Same-sex marriage coming to Utah

[FMCoug]

Boy scouts delivering pizza to county clerks working overtime today to issue marriage licenses:

http://www.religiondispatches.org/dispatches/joannabrooks/7468/boy_scouts__gay_marriage____pizza/

Pigs are flying, people.

Wearing rainbow neckerchiefs.

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[FMCoug]

Agreed. This is the most substantive argument against gay marriage I have heard: "I don't want to have to get married."

And the best pro is why shouldn't they have to be just as miserable as the rest of us. RIP Greg Giraldo.

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[Uncle Ted]

Boy scouts delivering pizza to county clerks working overtime today to issue marriage licenses:

http://www.religiondispatches.org/dispatches/joannabrooks/7468/boy_scouts__gay_marriage____pizza/

Pigs are flying, people.

LOL. Rainbow kerchiefs.

[UVACoug]

I know most of you don't care about the soundness of the actual reasoning of the opinion, but since at least one person expressed an interest in my thoughts on the equal protection discussion, I will offer it. Its a long post, so feel free to ignore it ... or to attack me for disagreeing with you on gay marriage and the constitution's protection of the right to it.

At first glance, it seems like he is taking a very conservative approach to the equal protection analysis. The plaintiffs wanted him to apply some form of heightened scrutiny to the statute, and there is some case law he could have relied on to justify following that approach, but ultimately he holds that applying heightened scrutiny would not be appropriate because (1) there isn't solid precedent to support it and (2) it isn't necessary. He then purports to apply the standard that is the most deferential to the state and decides that the law cannot even be justified under that standard. This is a bit of a farce because he ignores justifications that would clearly and easily constitute a rational basis for the law. Most of the blame for this should be put on the State though, who didn't make very good arguments to justify the law.

The rational basis test, which is what he claims to apply, says that a law that classifies groups that are not suspect [in this class, non-heterosexuals] is presumed to be lawful as long as it rationally relates to a legitimate government interest. The state made several arguments to justify the law that are related to the general idea that the state has an interest in promoting heterosexual marriages to promote stable and healthy families. These arguments are obviously inadequate, and Judge rightly disregards them because the state could not show that banning same-sex marriage interfered with the state's interest in promoting heterosexual marriage. He then concludes there is no rational basis, that the law is based purely on animus for gay people, and that it should be struck down.

The problem with this conclusion is that it clearly ignores a rational basis that is well established in the case law--the state's interest in regulating its own budget. As Judge Shelby states in his own opinion, the government offers families that are legally wed "a panoply of benefits." Those benefits are not free and constitute a state expenditure, even if they are extended in the form of a tax break. Thus, to the extent the state has an interest in promoting heterosexual marriages that does not apply to same-sex marriages, the fact that promoting marriage costs money provides the state with a rational basis for not extending those benefits to families that don't accomplish the state's goals. Judge Shelby admits that there is an issue of fact regarding whether the state has an interest in promoting heterosexual marriages that doesn't exist in the context of same-sex marriages (such as promoting responsible procreation). This "issue of fact" would normally prevent him from granting summary judgment, but he says it doesn't matter because there is no evidence that same-sex marriage would interfere with the state's interest in promoting responsible procreation. This reasoning fails though because its indisputable that same-sex marriages cost the state money and the state certainly has an interest in not spending money on programs that do not accomplish its purposes.

To the Judge's credit, the state did not make this argument so he was not required to come up with it on its own. I imagine, however, that if the state had made the argument, the judge would have applied some kind of heightened scrutiny to strike the law down anyways. I wish he would have done that, as it would have been more intellectually honest. To be fair, this kind of intellectual dishonesty with regards to sexual orientation has gone on for years, including by the Supreme Court. It is virtually unheard of for a law to be struck down as unconstitutional outside the sexual orientation contexts after applying rational basis scrutiny ... yet federal courts have struck down several laws that classify on the basis of sexual orientation while purporting to apply rational basis scrutiny. It is clear that they are actually applying something higher without actually admitting it. Maybe now that society seems to have gotten over its aversion to those with abnormal sexual orientations, the court can be more honest about what they are doing and recognize gays as a quasi-suspect class.

Finally, a comment on the injunction. At first I didn't realize there was an injunction because the judge doesn't mention it until the very end of the case. This is somewhat bizarre as the standard for issuing an injunction is somewhat different from the standard for granting summary judgment. Moreover, he enjoins the enforcement of the Utah statutes that prohibit issuance of marriage licenses to same sex couples, but does absolutely no analysis of the constitutionality of those statutes. They are not the same as Amendment 3 and I'm not even sure if they were challenged. If they weren't challenged, the injunction is certainly an overreach.

My ultimate takeaway from the decision is that it is clear that the judge started with a conclusion and worked his hardest to justify it with existing case law. He's not the first to do that in this context, and he won't be the last (a federal judge in Ohio came out with a similar ruling today). To justify the conclusion, he had to extend the law in some areas (even though he claims he is just following precedent, and claimed in his confirmation questionnaire the it would be an abuse of his power to go beyond established precedent). He also had to ignore obvious justifications for the law that are well established as being rationally based. Ultimately, these issues will have to be decided by the Supreme Court. I wouldn't be so sure that it will end up like many of you expect. Justice Kennedy has established himself as the swing vote on the issue, with the four more partisan justices on both sides more entrenched. But Justice Kennedy is first and foremost a libertarian and will be resistant to the idea that states should be compelled to offer marriage benefits to anyone. It is one thing to strike down a law that requires the state to interfere with people's private lives ... it is quite another to force the state to give benefits to people because of their private relationships. That's why I don't think the substantive due process reasoning of Judge Shelby will go anywhere. There is nothing in the Constitution that comes close to requiring the state to grant marriage licenses in the first instance. The equal protection argument is stronger and if the Court finds a "right" to gay marriage in the constitution, it will be on the grounds that gay marriage bans unlawfully discriminate. I hope that this is done by applying heightened scrutiny, not by claiming there is no rational basis for the laws (which is intellectually dishonest). That would put laws that discriminate on the basis of sexual orientation in the same category as laws that discriminate on the basis of race and sex. That would be a pretty big change in the law, but it would be more honest and consistent with what is actually going on.

[Northwestcoug]

Lynn Wardle has been the church's main academician lawyer on same-sex marriage. He is about as biased on this issue as they come.

At least he's being consistent then.

[Jeff Lebowski]

Five Utah counties thinking like Jacob and giving Judge Shelby and gay couples the finger:

http://www.buzzfeed.com/hunterschwarz/there-are-at-least-five-counties-in-utah-still-not-issuing-m

Cache county attorney has ordered the county clerk office to be closed indefinitely. That is not going to end well.

[Topper]

Five Utah counties thinking like Jacob and giving Judge Shelby and gay couples the finger:

http://www.buzzfeed.com/hunterschwarz/there-are-at-least-five-counties-in-utah-still-not-issuing-m

Cache county attorney has ordered the county clerk office to be closed indefinitely. That is not going to end well.

So couples move to county that issues one. Then return to home county.

[FMCoug]

Five Utah counties thinking like Jacob and giving Judge Shelby and gay couples the finger:

http://www.buzzfeed.com/hunterschwarz/there-are-at-least-five-counties-in-utah-still-not-issuing-m

Cache county attorney has ordered the county clerk office to be closed indefinitely. That is not going to end well.

Can the Judge throw him in jail for contempt of court?

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[TripletDaddy]

Utah County
Cache County
Jacob
UVaCoug
Hazel Massery
etc...

[Solon]

Perhaps the president will need to send the National Guard into Utah to force the counties to follow the federal judge's order to stop discrimination. I would be fine with that.

Or the 101st Airborne.

http://www.eisenhower.archives.gov/research/online_documents/civil_rights_little_rock/Press_Release_EO_10730.pdf

I wonder if we'll get an equivalent to the Southern Manifesto. This document argued that the Constitution says nothing about Education and that matters of race should be left to the states. Very similar to the arguments I'm hearing about the Constitution, the Government, & Marriage.

I understand the point that Utah's Constitution was predicated on the recognition of traditional marriage norms. Problem is, Utah became a state in 1896 - the same year as Plessy v. Ferguson. It might be time for an update. Norms evolve.

[The_Douger]

Five Utah counties thinking like Jacob and giving Judge Shelby and gay couples the finger:

http://www.buzzfeed.com/hunterschwarz/there-are-at-least-five-counties-in-utah-still-not-issuing-m

Cache county attorney has ordered the county clerk office to be closed indefinitely. That is not going to end well.

Good night, this is going to end up like the military escorting the AA kids in to school.

[FMCoug]

Or the 101st Airborne.

http://www.eisenhower.archives.gov/research/online_documents/civil_rights_little_rock/Press_Release_EO_10730.pdf

I wonder if we'll get an equivalent to the Southern Manifesto. This document argued that the Constitution says nothing about Education and that matters of race should be left to the states. Very similar to the arguments I'm hearing about the Constitution, the Government, & Marriage.

I understand the point that Utah's Constitution was predicated on the recognition of traditional marriage norms. Problem is, Utah became a state in 1896 - the same year as Plessy v. Ferguson. It might be time for an update. Norms evolve.

The parallels between this and civil rights are startling. I am arguing with a guy on FB about this and his argument is essentially 100% identical to Plessy v. Ferguson. Gays can have all the same rights as straight married folks if they enter into a contract, write a will, etc. Separate But Equal. Ugh.

[TripletDaddy]

Good night, this is going to end up like the military escorting the AA kids in to school.

I guess you don't know hazel massery.

[CardiacCoug]

That was a long (and to me boring) post, UVaCoug.

Can you just explain in a simple way why you think gay couples who would like to be married shouldn't be allowed to be married?

I find it fascinating that a gay person supports discrimination against other gay people when it comes to marriage.

[Flystripper]

Some smart person said it sounds like self loathing.