Same-sex marriage coming to Utah

[San Juan Sun]

It feels to me like the increasingly specious arguments against gay marriage are more and more like the Honorable Homer Stokes.

[ERCougar]

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.

Even federal court judges are not immune from the human tendency to start at the conclusion they want and build up the logic to support it. We all do it.

Still, even though I completely disagree with you on this issue, I think the argument is pretty fascinating. I'm curious to hear your opinion on the other half.

[UVACoug]

Even federal court judges are not immune from the human tendency to start at the conclusion they want and build up the logic to support it. We all do it.

Still, even though I completely disagree with you on this issue, I think the argument is pretty fascinating. I'm curious to hear your opinion on the other half.

I agree with you on judges. I think that is what happened here. I don't think this decision makes Shelby a bad judge. This is a controversial issue that everyone has strong feelings about. He certainly did his best to justify his decision, and he may end up being right on the equal protection stuff. The substantive due process stuff just doesn't work. I'm not sure he even sees the flaw with it. I guarantee the state didn't argue the issue effectively.

I realize that a lot of people here disagree with my stance on gay marriage. I don't want to get in a discussion about the societal benefits or detriments of gay marriage. I was just hoping this was still a place to have reasonable discussion on the substance of the opinion.

[Jeff Lebowski]

"The State of Utah has provided no evidence that opposite-sex marriage will be affected in any way by same-sex marriage. In the absence of such evidence, the State’s unsupported fears and speculations are insufficient to justify the State’s refusal to dignify the family relationships of its gay and lesbian citizens. Moreover, the Constitution protects the Plaintiffs’ fundamental rights, which include the right to marry and the right to have that marriage recognized by their government. These rights would be meaningless if the Constitution did not also prevent the government from interfering with the intensely personal choices an individual makes when that person decides to make a solemn commitment to another human being. The Constitution therefore protects the choice of one’s partner for all citizens, regardless of their sexual identity." - Case No. 2:13-cv-217

Seems to be a fairly simple argument.

[SoonerCoug]

I agree with you on judges. I think that is what happened here. I don't think this decision makes Shelby a bad judge. This is a controversial issue that everyone has strong feelings about. He certainly did his best to justify his decision, and he may end up being right on the equal protection stuff. The substantive due process stuff just doesn't work. I'm not sure he even sees the flaw with it. I guarantee the state didn't argue the issue effectively.

I realize that a lot of people here disagree with my stance on gay marriage. I don't want to get in a discussion about the societal benefits or detriments of gay marriage. I was just hoping this was still a place to have reasonable discussion on the substance of the opinion.

It's fine, UVACoug. You'll be OK with gay marriage in a few years.

I still remember when SeattleUte predicted my complete apostasy. I thought it'd never happen, but it did.

[Uncle Ted]

Seems to be a fairly simple argument.

It seems that a very similar simple argument could be made so the government in Utah would have to recognize polygamous marriages no matter what the popular public or LDS church opinion. Of course, given the other ruling on cohabitation it doesn't really matter if the government recognizes polygamous marriages. The government did create some welfare loopholes and other problems, however. I suspect the Utah polygamists, just like the Utah gays and lesbians, will now be coming out of the closet.

[Jeff Lebowski]

It's fine, UVACoug. You'll be OK with gay marriage in a few years.

I still remember when SeattleUte predicted my complete apostasy. I thought it'd never happen, but it did.

Lol. Like that was hard to predict.

[Topper]

It's fine, UVACoug. You'll be OK with gay marriage in a few years.

I still remember when SeattleUte predicted my complete apostasy. I thought it'd never happen, but it did.

Were you ever NOT an apostate? This is the first I've heard.

[UVACoug]

Seems to be a fairly simple argument.

Please show me anything in the constitution or the case law that says you have a right to have the government "recognize" your marriage. The reasoning makes perfect sense if you accept all Judge Shelby's assumptions. The problem is that there is no authority for his assumptions.

[UVACoug]

It seems that a very similar simple argument could be made so the government in Utah would have to recognize polygamous marriages no matter what the popular public or LDS church opinion. Of course, given the other ruling on cohabitation it doesn't really matter if the government recognizes polygamous marriages. The government did create some welfare loopholes and other problems, however. I suspect the Utah polygamists, just like the Utah gays and lesbians, will now be coming out of the closet.

Judge Shelby relied on the same case to find same sex marriage unconstitutional that Judge Waddoups relied on to find a ban on bigamous cohabitation unconstitutional. Shelby even quoted Justice Scalia's warning about Lawrence requiring states to recognize gay marriages and said he was right. If Shelby's reasoning is correct, states are ALSO required to recognize (grant marriage licenses to) bigamous families. People will try to distinguish the two, but there is no getting around the analysis.

[Moliere]

http://www.deseretnews.com/article/8...l-tyranny.html

I'll comment on this later, but right now I'll just say

[Maximus]

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.

Exactly which part of the constitution gives people the right to marry any adult they want?

[Color Me Badd Fan]

It seems that a very similar simple argument could be made so the government in Utah would have to recognize polygamous marriages no matter what the popular public or LDS church opinion. Of course, given the other ruling on cohabitation it doesn't really matter if the government recognizes polygamous marriages. The government did create some welfare loopholes and other problems, however. I suspect the Utah polygamists, just like the Utah gays and lesbians, will now be coming out of the closet.

I used to think that requiring the right of gays to get married would lead to the required legalization of polygamy. However, I now don't think it does. The federal/state government has basically no interest and receives no benefit from denying gays from getting married.

However, I think there is a compelling state interest in outlawing polygamy. Centuries ago, societies that promoted marriage succeeded while those that didn't failed. You have to look at the thing from an anthropological perspective. Alpha males got the women and then would eventually cast them off for younger women. There was also a large population of beta males who rarely got the opportunity to mate. It's not good to have large populations of single beta males and single older females (and by older I mean mid 30s and older) along with their children. There are segments of our society now that avoid marriage and there is a massive population of children without fathers. The Colorado City clan culls the herd of young males (the "lost boys") and casts them off in society at large. The females are treated as chattel. They do not, generally speaking, abandon older females however. They do force some of the females to certain men at very young ages.

[Topper]

Exactly which part of the constitution gives people the right to marry any adult they want?

In an early case, the right to marry was considered a reserved liberty and part in some arguments to the right of privacy. By extension of the Equal Protection Clause, that liberty is extended to all who claim it. That is the Constitutional argument. Remember the Virginia miscegenation law? The Supreme Court found the right to marry a fundamental right.

Loving v Virginia (1967)

[Topper]

I used to think that requiring the right of gays to get married would lead to the required legalization of polygamy. However, I now don't think it does. The federal/state government has basically no interest and receives no benefit from denying gays from getting married.

However, I think there is a compelling state interest in outlawing polygamy. Centuries ago, societies that promoted marriage succeeded while those that didn't failed. You have to look at the thing from an anthropological perspective. Alpha males got the women and then would eventually cast them off for younger women. There was also a large population of beta males who rarely got the opportunity to mate. It's not good to have large populations of single beta males and single older females (and by older I mean mid 30s and older) along with their children. There are segments of our society now that avoid marriage and there is a massive population of children without fathers. The Colorado City clan culls the herd of young males (the "lost boys") and casts them off in society at large. The females are treated as chattel. They do not, generally speaking, abandon older females however. They do force some of the females to certain men at very young ages.

Polygamy with consenting adults is probably coming for good. With Islam favoring it, and the arguments surrounding gay marriage, it is difficult legally to prevent it.