Same-sex marriage coming to Utah

[jay santos]

New painting idea for McNaughton:

Obama forcing two straight guys to have sex.

[FMCoug]

Sometimes I don't. I didn't agree with slavery or not allowing women to vote. Any other smart ass questions?

Guys, give 71 a break. He was actually around for the stuff above and was a close friend of both John Brown and Susan B. Anthony!

[Uncle Ted]

While I still am not a supporter of gay marriage, I don't really care if gays get to marry in Utah. There are many more threats to the family than this. It does bother me that some federal judge make a decision this important for a state. It bothers me far more they have that power than the decision itself. Heck, given time the electorate in this state probably would have voted to allow gay marriage.

Federal judges have to push these law makers into action. It is like when the supreme court struck down a good part of the voting right act of 1965. The supreme court had warned congress to get their crap together but they didn't so the supreme court "sunk the federal government's battleship". Now Texas requires me to have a drivers license to vote. I guess that is a good thing.

[Northwestcoug]

Shelby used to work for Hatch. Not surprised that Shelby came down this way, even though I think much of his reasoning is wrong. Shelby is just another result of Hatch's political patronage program, where personal relationship is more important than qualifications or judicial philosophy. Make no mistake about it, this decision was more about the judge's personal opinion than applying the constitution. Not the first time that has happened, but pretty shocking when it comes from a guy that was hand-picked by someone who supposedly represents a state whose citizens strongly oppose gay marriage.


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Hmmm. His ruling sounded pretty reasonable to me. But I confess, I don't know the constitution as well as some here.

[byu71]

Guys, give 71 a break. He was actually around for the stuff above and was a close friend of both John Brown and Susan B. Anthony!

The relationship with Susan was intimate.

[UVACoug]

Got through the first half of the decision so far. The substantive due process stuff is pretty crazy. This is the first case I am aware of that uses the due process clause to compel a state to do something. The theory of substantive due process says that there are certain fundamental rights that are guaranteed to all citizens that the state cannot INTERFERE with unless they have a really good reason. The way Shelby applies it here, the state isn't being prevented from interfering with a right ... it is being forced to extend a "right" that would not otherwise exist. Based on Shelby's logic, the constitution requires states to sanction marriage, whether they are heterosexual or homosexual. That is quite a shift in the law and will almost undoubtedly be overturned, if not by the Tenth Circuit, then certainly by the Supreme Court. There is a group of very liberal legal scholars that think the fourteenth amendment should be read this way to give positive rights. Under this reasoning states would be compelled by the constitution to provide health care, housing, food, etc. on the grounds that these things are fundamental rights. It is a pretty controversial reading of the constitution and has never gained any traction.

The other thing I was surprised by is how unabashed he is about making significant findings about psychological and sociological aspects of homosexuality with absolutely no facts in the record to back them up. He may be right, but since there are no facts ... his findings seem pretty inappropriate. He isn't a psychologist or sociologist. He doesn't have the expertise to give an expert opinion on those issues.

Haven't gotten to the equal protection section yet, which seems like a better grounds for finding the amendment unconstitutional.

It seems quite clear that he had his mind made up pretty early (likely before the case was even filed). He barely took two weeks after the argument to issue his opinion, which is very quick in a constitutional challenge case. For comparison sake, Judge Waddoup's opinion on the polygamy issue was issued eleven months after it was argued and about two-and-a-half years after the case was filed.

Have to say I'm disappointed in Shelby on this one. I would hope a UVA Law alum would have thought a little harder here.

[UVACoug]

New painting idea for McNaughton:

Obama forcing two straight guys to have sex.

I'd buy it.

[Jeff Lebowski]

Sometimes I don't. I didn't agree with slavery or not allowing women to vote. Any other smart ass questions?

So you think we should toss out judicial review, the backbone of checks and balances built into the constitution? The very thing that requires that we .... you know .... actually follow the constitution?

[wuapinmon]

The relationship with Susan was intimate.

I'm so sorry.

[byu71]

C'mon. You know I am not into intellectual masterbation. Perhaps you can find the constitutional lawyer on ksl who basically had the same concern I do.

I do respect you have a different opinion No problem. The people who got married were happy. Good for them.

[scottie]

New painting idea for McNaughton:

Obama forcing two straight guys to have sex.

[CardiacCoug]

Got through the first half of the decision so far. The substantive due process stuff is pretty crazy. This is the first case I am aware of that uses the due process clause to compel a state to do something. The theory of substantive due process says that there are certain fundamental rights that are guaranteed to all citizens that the state cannot INTERFERE with unless they have a really good reason. The way Shelby applies it here, the state isn't being prevented from interfering with a right ... it is being forced to extend a "right" that would not otherwise exist. Based on Shelby's logic, the constitution requires states to sanction marriage, whether they are heterosexual or homosexual. That is quite a shift in the law and will almost undoubtedly be overturned, if not by the Tenth Circuit, then certainly by the Supreme Court. There is a group of very liberal legal scholars that think the fourteenth amendment should be read this way to give positive rights. Under this reasoning states would be compelled by the constitution to provide health care, housing, food, etc. on the grounds that these things are fundamental rights. It is a pretty controversial reading of the constitution and has never gained any traction.

The other thing I was surprised by is how unabashed he is about making significant findings about psychological and sociological aspects of homosexuality with absolutely no facts in the record to back them up. He may be right, but since there are no facts ... his findings seem pretty inappropriate. He isn't a psychologist or sociologist. He doesn't have the expertise to give an expert opinion on those issues.

Haven't gotten to the equal protection section yet, which seems like a better grounds for finding the amendment unconstitutional.

It seems quite clear that he had his mind made up pretty early (likely before the case was even filed). He barely took two weeks after the argument to issue his opinion, which is very quick in a constitutional challenge case. For comparison sake, Judge Waddoup's opinion on the polygamy issue was issued eleven months after it was argued and about two-and-a-half years after the case was filed.

Have to say I'm disappointed in Shelby on this one. I would hope a UVA Law alum would have thought a little harder here.

Oh brother.

It's not that complicated. There is absolutely no compelling reason (other than crazy religious superstition -- so yeah no reason) for the government to deny the right of marriage to gay citizens. The onus is on the state to prove that this right should be withheld from gays and of course the state can't possibly do that because there is no justification except "My church leaders said so."

How on earth can you argue that the Utah constitutional amendment did not interfere with the right of gay citizens to marry? Of course it did.

[grapevine]

What right does one man with a law degree have to overturn the will of the people? IF Shelby was a state judge up for retention would be ousted. But probably only way to be ousted now is moving out, death, retirement or impeachment. AT least his ruling won't stand. One person more powerful than the majority who voted to keep marriage between one man and one women.

[jay santos]

What right does one man with a law degree have to overturn the will of the people? IF Shelby was a state judge up for retention would be ousted. But probably only way to be ousted now is moving out, death, retirement or impeachment. AT least his ruling won't stand. One person more powerful than the majority who voted to keep marriage between one man and one women.

We don't have a democracy. We have a democratic republic with separation of powers. It's all outlined in Mosiah 29.

[UVACoug]

Oh brother.

It's not that complicated. There is absolutely no compelling reason (other than crazy religious superstition -- so yeah no reason) for the government to deny the right of marriage to gay citizens. The onus is on the state to prove that this right should be withheld from gays and of course the state can't possibly do that because there is no justification except "My church leaders said so."

How on earth can you argue that the Utah constitutional amendment did not interfere with the right of gay citizens to marry? Of course it did.

I didn't argue that, genuis. I argued that despite what the judge claimed, there has never been a case that has held that there is a substantive due process right to marriage. All the cases he cited to were equal protection cases involving suspect classes (if you offer marriage, you can't discriminate on the basis of race for example). There is no precedent for saying that there is a substantive due process right to ANY marriage, let alone gay marriage. Shelby's opinion forces the state to issue marriage licenses in the first instance, which is pretty radical. There is nothing in the constitution that comes close to requiring states to do that. If it did, there would be no end to the positive rights the courts could require the state to provide. If Utah decided they wanted to just stop recognizing marriages as a legal institution, they could not do so under Shelby's reasoning.

If the law is unconstitutional, it would have to be on equal protection grounds, not substantive due process grounds. The first half of the decision just doesn't work, regardless of what you think of the outcome. There is a reason the other federal courts that have addressed the issue have avoided the substantive due process prong to focus on the equal protection prong. Like I said, I haven't read that portion of the opinion yet and his reasoning may be sound there. That will depend on what evidence the state chose to present for their case and what level of scrutiny the judge applied. Given the utter incompetence of the Utah Attorney General's office right now, I imagine they didn't put on any evidence (that was the case for Judge Waddoups's polygamy decision). The fact that the case was decided only a few months after it was filed also suggest that the state didn't do much work developing the factual record. I'm also guessing the judge applied some form of strict scrutiny, whether he admits it or not. There is no appellate court precedent for applying strict scrutiny to discrimination on grounds of sexual orientation cases, but my guess is there will be eventually. It is certainly "activist" to apply strict scrutiny where there is no precedent for doing so.

Don't let fact, reason, and the law get in the way of attacking those that disagree with your personal opinions though. You never do, and I don't expect that there is any amount of explanation I can give to change that.