Same-sex marriage coming to Utah

[Applejack]

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

Thanks, I hadn't seen that before.

Judge Jones seems to say all the same things that Judge Shelby does (rational basis review - legitimate state interest in protecting family) except for the last step: whether the law forbidding gay marriage rationally relates to the state interest (protecting family). He says it does. The money quote:

Should [marriage] be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.

Judge Shleby, Judge Walker, and Judge Applejack disagree that the specter of heterosexuals being turned off to marriage because gays are now getting married is a rational relationship, but I have heard this from many smart, good people so I admit that the argument has enough merit to potentially carry the day. But if that is the best argument that can be mustered for the law's rational basis, I think most people would agree that there is at least a decent chance that the Supreme Court might knock out Amendment 3 on Equal Protection grounds.

[imanihonjin]

Thanks, I hadn't seen that before.

Judge Jones seems to say all the same things that Judge Shelby does (rational basis review - legitimate state interest in protecting family) except for the last step: whether the law forbidding gay marriage rationally relates to the state interest (protecting family). He says it does. The money quote:



Judge Shleby, Judge Walker, and Judge Applejack disagree that the specter of heterosexuals being turned off to marriage because gays are now getting married is a rational relationship, but I have heard this from many smart, good people so I am not saying its a slam-dunk case. But if that is the best argument that can be mustered for the law's rational basis, I think most people would agree that there is a decent chance that the Supreme Court might knock out Amendment 3 on Equal Protection grounds.

Uh, yeah, that is a really awful argument. But refresh my memory on rational basis. The reasoning doesn't have to be sound or even factually born out, right?

[Nakoma]

Thanks, I hadn't seen that before.

Judge Jones seems to say all the same things that Judge Shelby does (rational basis review - legitimate state interest in protecting family) except for the last step: whether the law forbidding gay marriage rationally relates to the state interest (protecting family). He says it does. The money quote:




Judge Shleby, Judge Walker, and Judge Applejack disagree that the specter of heterosexuals being turned off to marriage because gays are now getting married is a rational relationship, but I have heard this from many smart, good people so I admit that the argument has enough merit to potentially carry the day. But if that is the best argument that can be mustered for the law's rational basis, I think most people would agree that there is at least a decent chance that the Supreme Court might knock out Amendment 3 on Equal Protection grounds.

I also don't think Jones gave a persuasive rational basis justification for limiting marriage to heterosexual couples.

[Applejack]

Uh, yeah, that is a really awful argument. But refresh my memory on rational basis. The reasoning doesn't have to be sound or even factually born out, right?

Right, it's a low standard, you don't need empirical evidence or anything to support the argument. But you need something, it can't just be a conclusion, i.e., "gay marriage will harm traditional marriage." The standard is that the law needs to be "rationally related" to a "legitimate" government interest. I think almost everyone agrees there is a legitimate government interest being pursued (strengthening families, protecting marriage, protecting children, etc.); the real debate lies in whether this law actually has any rational relationship to that interest.

[All-American]

I also don't think Jones gave a persuasive rational basis justification for limiting marriage to heterosexual couples.

It doesn't need to be persuasive.

[All-American]

Filing before tenth circuit requesting a stay; includes as appendices the original ruling and transcript of oral hearing requesting stay.

http://sblog.s3.amazonaws.com/wp-con...n-12-23-13.pdf

Edit: sorry, wrong link. This is the opposition to stay. Links to above-referenced docs found here:

http://www.scotusblog.com/2013/12/ut...tenth-circuit/
http://www.scotusblog.com/2013/12/ut...age-ban-falls/

[Jeff Lebowski]

It doesn't need to be persuasive.

[FMCoug]

So supposedly the AG has issued a statement saying that county clerks should be issuing same sex marriage licenses or they are in violation of the law. And Utah County is still refusing. This is FB rumor stuff ... anybody have anything substantial? What on earth is their excuse going to be now?

[cougjunkie]

So supposedly the AG has issued a statement saying that county clerks should be issuing same sex marriage licenses or they are in violation of the law. And Utah County is still refusing. This is FB rumor stuff ... anybody have anything substantial? What on earth is their excuse going to be now?

I think the clerks office is closed today, I am guessing it is nothing more than rumor.

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[frank ryan]

I think the clerks office is closed today, I am guessing it is nothing more than rumor.

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State and county offices don't usually close for Christmas Eve .

[cougjunkie]

State and county offices don't usually close for Christmas Eve .

I understand but I thought a few (Utah County being one of them) closed up shop until further notice.

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[frank ryan]

http://m.sltrib.com/sltrib/mobile3/5...esday.html.csp I was wrong they closed early today

[All-American]

Rational basis review. You don't have to convince the judge that it was right, or even that it was a good idea in theory with little hope of good execution in practice. Thus, it need not be persuasive. Instead, challengers must show that no rational person could find it persuasive.

Rational basis review used to be code for "you lose." There is almost always some rational basis for just about any government action. As such, I don't much care for rejection of marriage laws as an idea that no rational person motivated by anything other than hatred could possibly think is a good idea. I would much rather have the courts acknowledge that sexual orientation requires heightened protection and find that the laws don't pass any more stringent form of scrutiny. In fact, I've never heard a really good explanation of why a traditional marriage law doesn't constitute gender discrimination (though judge Jones makes a decent effort).

[Jacob]

Or the 101st Airborne.
http://www.eisenhower.archives.gov/r...e_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.

if you need a manifesto just read the Supreme Court's most recent ruling on the issue in Windsor. it's stated unequivocally that marriage is an issue to be left to the states.

[UVACoug]

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've already done that in another thread. I'm not going to take your bait. I could care less if you think the legal aspects of the case are boring or not.