Same-sex marriage coming to Utah

[TripletDaddy]

It has been interesting to watch the retrenching process. There are fewer and fewer plausible arguments now that the judiciary has signaled clearly that religious reasoning will be rejected. UVa argues that a rational basis for ultimately rejecting gay marriage is that the State has an interest in its own budget. That's a new one, i suppose. Gays shouldn't be allowed to marry in Utah because it is too expensive. Lol.

You know the battle is in its final desperate and pathetic stages when the rank and file start making procedural arguments. LA Utes gibberish earlier about balls and strikes and jacob and uva blathering on about the absurdity of inevitability. I didn't realize we had so many people on this board that held near and dear to the "rule of law." I've never seen Jacob make a single other post in the history of this board critcizing a possible abuse of authority by a judge in any other matter. Why now?

This is reminiscent of the xenophobic anti immigration rhetoric...the people who claim that they aren't against immigrants, they are just really really concerned that people enter the country legally. It has nothing to do with Mexicans crossing the border. It is simply a concern for the process by which they do it.

The rule of law has become the final excuse to justify homophobia.

[ERCougar]

I think UVA's legal arguments are interesting
Jacob calling a federal judge a lunatic, not so much.

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[Applejack]

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.

Thanks for this. I agree with you that the injunction to clerks is odd in this case. If I were the judge I would have struck down Amendment 3 and then put it back to the legislature, but I'm not the judge.

I do take issue with your take on the Equal Protection Clause, however. I agree with you (and the Judge) that rational basis review is the proper standard here. And although most constitutional challenges to rational basis review are upheld as constitutional, not all have been. A government must simply show that a law is "rationally related" to a legitimate state interest.

But, throughout all of the litigation on gay marriage, I have yet to hear a legitimate government interest that will be impacted by permitting gay marriage. I don't think your government budget argument will work - you still need a basis for making that budgetary distinction. For example, you obviously couldn't forbid hispanics from marrying due to budgetary concerns, you would still need a rational basis for excluding hispanics in the first place. Likewise, just saying that allowing gay marriage will be expensive (I'm not even sure that is true) you would still need a legitimate reason for singling out gays for your savings.

The other arguments usually offered, such as a legitimate interest in having children raised with a mother and father, seem like legal non-sequiters (I take it from your post that you agree?). Even if we except the proposition that children do better with a mother and father and that gay parenting hurts children (I do not accept that proposition, but just for argument's sake...), laws prohibiting gay marriage have exactly zero impact on such things: gays can already adopt kids in every state in the union, regardless of their marital status. So, forbidding gay marriage will not result in more kids being raised by non-gay parents, it will only result in fewer kids being raised by married gay parents. A law that claims to be protecting children but which only results in their parents not being legally bound to one another does not have a rational basis.

Just to be clear, I take no issue with opponents of gay marriage. I think moral/religious decision-making is perfectly legitimate--for individuals. It's not a legitimate way to make laws, however. So, the simple question for the state of Utah is, what is the legitimate government interest that is rationally related to outlawing gay marriage?

[Topper]

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.

I think he is saying that a state should be able to define marriage in the manner it wishes because there is a rational basis for its definition which excludes gays. He believes the standard employed under constitutional jurisprudence is wrong.

The problem with Equal Protection and other arguments in this sort of arena is that the principles are very flexible, and can morph into whatever five out of nine justices say they mean.

[Color Me Badd Fan]

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.

There isn't really a substantive reason why states shouldn't allow gay marriage. It doesn't threaten straight marriage and people aren't more apt to become gay as a result. Over the weekend I didn't all of a sudden crave another man's anus.

But there is, however, a real judicial restraint argument. Namely, is the court stretching things to the extent that they're finding rights guaranteed out of thin air when comparing it to what the constitution actually says. Additionally, don't the other branches of government and states also have some authority to interpret the constitution too?

Think about it this way. John Roberts knew that Obamacare was a horrific law and he could of spared the country a lot of trouble if he had overturned it. Instead, there are now millions more without health insurance now, and those that previously had it now have to expend a huge amount more to get it again. The utilitarian argument is that Roberts should have gotten rid of the law.

So, one then has to think how far these kinds of decisions reach and what do they portend for the future. If the judiciary can dictate this, then what else can they dictate in the future?

I believe they can keep these things narrow enough so that they can avoid a lot of this trouble. But these fears aren't merely procedural in nature or whatever you want to call it.

[imanihonjin]

It has been interesting to watch the retrenching process. There are fewer and fewer plausible arguments now that the judiciary has signaled clearly that religious reasoning will be rejected. UVa argues that a rational basis for ultimately rejecting gay marriage is that the State has an interest in its own budget. That's a new one, i suppose. Gays shouldn't be allowed to marry in Utah because it is too expensive. Lol.

You know the battle is in its final desperate and pathetic stages when the rank and file start making procedural arguments. LA Utes gibberish earlier about balls and strikes and jacob and uva blathering on about the absurdity of inevitability. I didn't realize we had so many people on this board that held near and dear to the "rule of law." I've never seen Jacob make a single other post in the history of this board critcizing a possible abuse of authority by a judge in any other matter. Why now?

This is reminiscent of the xenophobic anti immigration rhetoric...the people who claim that they aren't against immigrants, they are just really really concerned that people enter the country legally. It has nothing to do with Mexicans crossing the border. It is simply a concern for the process by which they do it.

The rule of law has become the final excuse to justify homophobia.

You are too harsh in your response to UVA....his thoughts (I really have no idea whether he thinks same-sex marriage should be allowed as a policy or not) are a pretty good legal explanation of the decision. Rational basis review almost always falls in favor of the government. A budget concern would almost always result in a win for the government no matter how little it would actually save the government. I thought he was merely arguing what the court did was intellectually dishonest and not a proper application of precedent.

In the end, it isn't going to matter much because the SCOTUS will ultimately have to decide the issue.

[imanihonjin]

Thanks for this. I agree with you that the injunction to clerks is odd in this case. If I were the judge I would have struck down Amendment 3 and then put it back to the legislature, but I'm not the judge.

I do take issue with your take on the Equal Protection Clause, however. I agree with you (and the Judge) that rational basis review is the proper standard here. And although most constitutional challenges to rational basis review are upheld as constitutional, not all have been. A government must simply show that a law is "rationally related" to a legitimate state interest.

But, throughout all of the litigation on gay marriage, I have yet to hear a legitimate government interest that will be impacted by permitting gay marriage. I don't think your government budget argument will work - you still need a basis for making that budgetary distinction. For example, you obviously couldn't forbid hispanics from marrying due to budgetary concerns, you would still need a rational basis for excluding hispanics in the first place. Likewise, just saying that allowing gay marriage will be expensive (I'm not even sure that is true) you would still need a legitimate reason for singling out gays for your savings.

The other arguments usually offered, such as a legitimate interest in having children raised with a mother and father, seem like legal non-sequiters (I take it from your post that you agree?). Even if we except the proposition that children do better with a mother and father and that gay parenting hurts children (I do not accept that proposition, but just for argument's sake...), laws prohibiting gay marriage have exactly zero impact on such things: gays can already adopt kids in every state in the union, regardless of their marital status. So, forbidding gay marriage will not result in more kids being raised by non-gay parents, it will only result in fewer kids being raised by married gay parents. A law that claims to be protecting children but which only results in their parents not being legally bound to one another does not have a rational basis.

Just to be clear, I take no issue with opponents of gay marriage. I think moral/religious decision-making is perfectly legitimate--for individuals. It's not a legitimate way to make laws, however. So, the simple question for the state of Utah is, what is the legitimate government interest that is rationally related to outlawing gay marriage?

The budget argument would work for rational basis review because the only way you get to rational basis review is when you are dealing with a class of people who are not a protected class. Here the judge found that homosexuals were not a protected class. Your hispanic argument wouldn't work because a race based governmental decision would not be subjected to rational basis review but would be subject to a strict scrutiny and would require the government to produce a compelling governmental reason that is narrowly tailored to achieve that interest and there must not be a less restrictive means to achieve that result.

That said, this is only a legal analysis of the opinion. I believe SCOTUS will ultimately decide the case in favor of gay marriage and their reasons will be similarly suspect as they will have to bend and twist things in an nonconforming fashion in order to meet the social demands of the day. If you care, my position is similar to that of Uncle Ted's, I fail to see why the government should be involved in marriage in the first place.

[ERCougar]

There isn't really a substantive reason why states shouldn't allow gay marriage. It doesn't threaten straight marriage and people aren't more apt to become gay as a result. Over the weekend I didn't all of a sudden crave another man's anus.

But there is, however, a real judicial restraint argument. Namely, is the court stretching things to the extent that they're finding rights guaranteed out of thin air when comparing it to what the constitution actually says. Additionally, don't the other branches of government and states also have some authority to interpret the constitution too?

Think about it this way. John Roberts knew that Obamacare was a horrific law and he could of spared the country a lot of trouble if he had overturned it. Instead, there are now millions more without health insurance now, and those that previously had it now have to expend a huge amount more to get it again. The utilitarian argument is that Roberts should have gotten rid of the law.

So, one then has to think how far these kinds of decisions reach and what do they portend for the future. If the judiciary can dictate this, then what else can they dictate in the future?

I believe they can keep these things narrow enough so that they can avoid a lot of this trouble. But these fears aren't merely procedural in nature or whatever you want to call it.

Yes. To me, that's what's a little troubling about this. I'm no attorney, but uva's legal objections seem to be at least somewhat valid. And while I agree with the outcome of the decision, I'm not terribly excited about the Sooneresque 'because I think so' method of getting there.

Gay marriage bans are ridiculous, in my mind, but there are smart moral people who disagree with me. That's why we vote, and I'm cases where the vote outcome is immoral, the courts have an opportunity to overrule it--by following the rules. So yes, UVA has resorted to challenging that these have been followed, but the general response (outside of applejack) of ignoring the argument and just calling him a bigot is ironically reminiscent of the anti gay marriage contingents tactics.

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[TripletDaddy]

Yes. To me, that's what's a little troubling about this. I'm no attorney, but uva's legal objections seem to be at least somewhat valid. And while I agree with the outcome of the decision, I'm not terribly excited about the Sooneresque 'because I think so' method of getting there.

Gay marriage bans are ridiculous, in my mind, but there are smart moral people who disagree with me. That's why we vote, and I'm cases where the vote outcome is immoral, the courts have an opportunity to overrule it--by following the rules. So yes, UVA has resorted to challenging that these have been followed, but the general response (outside of applejack) of ignoring the argument and just calling him a bigot is ironically reminiscent of the anti gay marriage contingents tactics.

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Of course his response has merit. However, he ignores that the judgement also has merit. Can you summarize for us UVa's analysis of how the judge's actions might actually be valid? UVa ignores the merits almost entirely, so much so that he misinterpreted parts of the order, claiming that county clerks shouldn't even obey it. to his credit, he did eventually correct himself on that issue.

So yes, his points have merit, but this all-of-a-sudden concern for the procedural aspects of what has occurred this week is not evidence of legal scholarship. It is simply a last ditch argument to mask religiously-justified bigotry. There is no legitimate concern for the rule of law here. Make no mistake. Clerks refusing to issue marriage licenses arent doing because they love the US Constitution. They are refusing to do so because they dont approve of homosexuals and homosexuality.

btw, the smart moral people that disagree with you will change their minds and agree with you once the Church tells them to do so. History has shown that the truly smart moral people have already changed their minds.

[ERCougar]

Of course his response has merit. However, he ignores that the judgement also has merit. Can you summarize for us UVa's analysis of how the judge's actions might actually be valid? UVa ignores the merits almost entirely, so much so that he misinterpreted parts of the order, claiming that county clerks shouldn't even obey it. to his credit, he did eventually correct himself on that issue.

So yes, his points have merit, but this all-of-a-sudden concern for the procedural aspects of what has occurred this week is not evidence of legal scholarship. It is simply a last ditch argument to mask religiously-justified bigotry. There is no legitimate concern for the rule of law here. Make no mistake. Clerks refusing to issue marriage licenses arent doing because they love the US Constitution. They are refusing to do so because they dont approve of homosexuals and homosexuality.

btw, the smart moral people that disagree with you will change their minds and agree with you once the Church tells them to do so. History has shown that the truly smart moral people have already changed their minds.

I agree that Jacob is completely dismissive of any merits of the judgment (and in so doing, comes across as a lunatic himself), but UVA seems to be much more measured. I haven't read the decision so I don't know how fair he's being, but of course he's not going to make an eloquent defense of the judgment--he's making an argument.

Agree with the rest. The clerks' refusals have everything to do with homophobia.

I also think most smart moral people have changed their mind already, although there are still voices I respect who haven't (and who aren't Mormon). I'm actually surprised/heartened by the relative quiet that has followed this. I think it shows that even most Mormons don't really care about gay marriage but felt obligated to carry the banner because the church told them they should. I wonder what would happen if we had a vote today--and the church stayed out of it.

Btw, I appreciated your earlier comment in one of these threads about your experience in California. Hopefully, that will never be repeated.

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[imanihonjin]

Of course his response has merit. However, he ignores that the judgement also has merit. Can you summarize for us UVa's analysis of how the judge's actions might actually be valid? UVa ignores the merits almost entirely, so much so that he misinterpreted parts of the order, claiming that county clerks shouldn't even obey it. to his credit, he did eventually correct himself on that issue.

So yes, his points have merit, but this all-of-a-sudden concern for the procedural aspects of what has occurred this week is not evidence of legal scholarship. It is simply a last ditch argument to mask religiously-justified bigotry. There is no legitimate concern for the rule of law here. Make no mistake. Clerks refusing to issue marriage licenses arent doing because they love the US Constitution. They are refusing to do so because they dont approve of homosexuals and homosexuality.

btw, the smart moral people that disagree with you will change their minds and agree with you once the Church tells them to do so. History has shown that the truly smart moral people have already changed their minds.

You are still being too harsh. This is a significant case and thus gets more attention. I think gay marriage should be recognized yet I still do have issues with how the judge arrived at his position.

[Nakoma]

The lawnerds might want to review this decision last year by an LDS federal judge in Nevada upholding Nevada's constitutional provision that only marriage between a male and female person shall be recognized and given effect. It is an interesting contrast with the Utah decision. Unlike Judge Shelby who granted summary judgment in favor of the plaintiffs, Judge Jones granted summary judgment in favor of the state. His decision is on appeal to the Ninth Circuit.

http://lawprofessors.typepad.com/fil...393-sevcik.pdf

[Applejack]

The budget argument would work for rational basis review because the only way you get to rational basis review is when you are dealing with a class of people who are not a protected class. Here the judge found that homosexuals were not a protected class. Your hispanic argument wouldn't work because a race based governmental decision would not be subjected to rational basis review but would be subject to a strict scrutiny and would require the government to produce a compelling governmental reason that is narrowly tailored to achieve that interest and there must not be a less restrictive means to achieve that result.

That said, this is only a legal analysis of the opinion. I believe SCOTUS will ultimately decide the case in favor of gay marriage and their reasons will be similarly suspect as they will have to bend and twist things in an nonconforming fashion in order to meet the social demands of the day. If you care, my position is similar to that of Uncle Ted's, I fail to see why the government should be involved in marriage in the first place.

You are correct that my hispanic example is misleading because that case would receive strict scrutiny rather than rational basis review. But my larger point still applies: the government couldn't pass a law that discriminated against a class of people for no rational reason and then claim they are doing it to save money. A better example might be that the government couldn't forbid ex-convicts (a non-protected class) from getting married even though such a law would save money.

I know there have been cases where governmental economic interests have served as the legitimate means of the government, but I don't think that interest can carry the day in light of a completely irrational choice on who to discriminate against in order to save money. Romer (which shot down Colorado's constitutional amendment that prohibited cities from recognizing gays as a protected class) seems like a perfect fit for a lot of these arguments: the Supreme Court used rational basis scrutiny to knock down a law that discriminated against homosexuals because the law had not rational relation to a governmental interest. I assume Colorado could have (or did?) argue that they passed this law because they wanted to save money (giving special protection to a class would clearly cost the government money). Justice Kennedy wrote the opinion and I could see him writing something similar in a case about gay marriage:

[The amendment's] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests

[Jeff Lebowski]

You are still being too harsh. This is a significant case and thus gets more attention. I think gay marriage should be recognized yet I still do have issues with how the judge arrived at his position.

imanihonjin telling posters they are being too harsh. That is funny.

[imanihonjin]

imanihonjin telling posters they are being too harsh. That is funny.

Uh, okay. Thanks for weighing in.