Same-sex marriage coming to Utah

[Topper]

Now I am hurt. Accused of not using deep thought hurt enough, now it seems by inuendo I am accused of a dumb post. Ouch. Brilliant move on JL's part. He is trying to split my efforts. While handing me the "deep thought" accusation on a silver tray, do I split time on that with the fact I made a dumb comment. Or do I stick with the "deep thought" theme and just let the dumb post go?

Deep thought will be my choice. I get a smile and start laughing everytime I think of that one. I think even my friends out at Oakridge are going to tire of hearing discuss my lack of deep thought. Crap, I missed that putt. I don't think I gave it enough "deep thought".

You should split thought how blessed you are the Dude condescended to speak to you. We in our lives rarely meet an asshole.

[byu71]

You should split thought how blessed you are the Dude condescended to speak to you. We in our lives rarely meet an asshole.

Yea, but I don't want you getting the wrong idea. I appreciate and hold JL in very high regard.

[Donuthole]

Yea, but I don't want you getting the wrong idea. I appreciate and hold JL in very high regard.

Topper doesn't have the gift of discernment, it appears.

[byu71]

Topper doesn't have the gift of discernment, it appears.

He might, but in case there are others out there who might not, I wanted to make myself clear.

Oh, our greenskeeper wanted me to let him know when you are coming again. He has certain trees he wants to fence around to protect them.

[Topper]

Yea, but I don't want you getting the wrong idea. I appreciate and hold JL in very high regard.

He is a gifted professional, a loving husband and a good father. In person, he is quiet and unassuming. It seemed as if he were mistreating you, but if not, I'll leave it alone.

[SeattleUte]

This is my cocktail napkin analysis of the LDS amicus brief.

Oddly, the LDS brief narrowly focuses on a single argument by the plaintiffs in Kitchen v. Herbert (the case presently appealed by the state of Utah to the federal 10th Circuit Court of Appeals and the LDS brief purports to address in which Judge Shelby invalidated amendment 3) – the argument that because Amendment 3 was motivated by “animus” the court should apply the strict scrutiny and not the rational basis test standard under the Due Process or Equal Protection clauses of the Fifth Amendement. This was perhaps the least important of the plaintiffs’ arguments in the district court, and it was rejected by Judge Shelby because it lacked case law support and was unsupported by evidence that Utah voters were uniformly motivated by animus. Animus was not in any way a basis for Judge Shelby's decision.

Applying the Due Process Clause of the Fifth Amendment, Judge Shelby ruled that Amendment 3 is unconstitutional because “Amendment 3 burdens the Plaintiffs’ fundamental right to marriage and is therefore subject to strict scrutiny.” Judge Shelby noted that the courts had only found a compelling state interest to deny marriage in certain narrowly defined situations such as children, the mentally incapable, or life prisoners. Judge Shelby concluded that there is “no reason that the Plaintiffs are comparable to children, the mentally incapable, or life prisoners. the Plaintiffs are ordinary citizens—business owners, teachers, and doctors—who wish to marry the persons they love.”

Applying the Equal Protection Clause of the Fifth Amendment, Judge Shelby concluded that “the State of Utah has not demonstrated a rational, much less a compelling, reason why the Plaintiffs should be denied their right to marry” because “the effect of Amendment 3 is only to disallow same-sex couples from gaining access to [marriage] benefits,” which the State cannot show furthers “responsible procreation and optimal child-rearing.”

The crux of the LDS brief is found in its assertion that “[t]he suggestion that religious support for husband-wife marriage is rooted in anti-homosexual animus rests on a false portrayal of our beliefs.” As such, the LDS brief is not a serious legal argument but more of a public relations pamphlet. However, in asserting Christianity’s lack of animus in opposing gay marriage, the brief echoes some of Utah’s arguments in the district court. And as a result of its reliance on tradition, unsupported assertions, and its illogic, actually does betray quite a bit of animus. The lady doth protest too much, methinks.

The LDS brief is divided into four parts, although the headings are organized somewhat differently.

1. The first part of the LDS brief argues that “faith communities and religious organizations have a long history of upholding traditional marriage for reasons that have nothing to do with homosexuality.”

My response: True enough, but applying the same logic, homosexuals want to marry for reasons that have nothing to do with homosexuality per se. It just so happens that, as Judge Shelby stated, “the Plaintiffs . . . cannot develop the type of intimate bond necessary to sustain a marriage with a person of the opposite sex,” which the state of Utah did not dispute. Homosexuals want to marry for all the same reasons heterosexuals want to marry and none of these reasons per se have anything to do with being heterosexual or homosexual.

2. The second part of the LDS brief argues that “Social science confirms” that “‘[a] family headed by two married parents who are the biological mother and father of their children is the optimal arrangement for maintaining a socially stable fertility rate, rearing children, and inculcating in them the [values] required for politically liberal citizenship.’” Thus, the LDS brief argues that the law must play an important “educational function” by encouraging opposite sex marriages.

My response: That a family headed by a male and a female is optimal is a bald assertion, not evidence. But assuming arguendo this is true, it is not an argument for depriving same-sex couples the right to marry. Here I’ll quote Judge Shelby’s superb language responding to this assertion:

“No one disputes that marriage benefits serve not just legitimate, but compelling governmental interests, which is why the Constitution provides such protection to an individual’s fundamental right to marry. . . . Here, the challenged statute does not grant marriage benefits to opposite-sex couples. The effect of Amendment 3 is only to disallow same-sex couples from gaining access to these benefits. The court must therefore analyze whether the State’s interests in responsible procreation and optimal child-rearing are furthered by prohibiting same-sex couples from marrying. . . . The State has presented no evidence that the number of opposite-sex couples choosing to marry each other is likely to be affected in any way by the ability of same-sex couples to marry. . . . Indeed, it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. . . . Because Amendment 3 does not currently permit same-sex couples to engage in sexual activity within a marriage, the State reinforces a norm that sexual activity may take place outside the marriage relationship.”

3. The third part of the LDS brief argues that the legal precedent (case law) does not support using animus as a reason to apply strict scrutiny analysis.

My response: This may be true but lack of legal precedent supporting animus as a basis for applying strict scrutiny analysis does not save Amendment 3. To quote Judge Shelby, “It may be that some laws neither burden a fundamental right nor target a suspect class, but nevertheless impose a discrimination of such unusual character that a court must review a challenge to such a law with careful consideration. But the court’s analysis here does not hinge on that type of heightened review.”

4. The fourth part of the LDS brief argues that “Utah’s and Oklahoma’s marriage amendments are not invalid under the establishment clause because they were informed by religious and moral viewpoints.”

My response: This is a straw man. Nobody has argued this. The plaintiffs in the underlying case did not make the argument. Nor, as Judge Shelby noted, does his decision “mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage.”

[byu71]

He is a gifted professional, a loving husband and a good father. In person, he is quiet and unassuming. It seemed as if he were mistreating you, but if not, I'll leave it alone.

He is constantly mistreating me, but often he sticks his foot in his mouth. I mean really, being accused of not being a "deep thinker", LOL. Perhaps he was trying to be funny. You know how the intellectual, elite are. They have a weird sense of humor.

I won't leave alone it though, I mean that one deserves to get beaten like a mule.

[Jeff Lebowski]

Ha. I am living rent-free in '71's head.

You are all welcome to join me. Plenty of room in here.

[Topper]

He is constantly mistreating me, but often he sticks his foot in his mouth. I mean really, being accused of not being a "deep thinker", LOL. Perhaps he was trying to be funny. You know how the intellectual, elite are. They have a weird sense of humor.

I won't leave alone it though, I mean that one deserves to get beaten like a mule.

It seems many jokes here are beaten like a mule. Hence, my displaced discernment the place had grown nasty. Actually, I am not familiar with the intellectual elite, but I'll take your word for it.

[Topper]

This is my cocktail napkin analysis of the LDS amicus brief.

Oddly, the LDS brief narrowly focuses on a single argument by the plaintiffs in Kitchen v. Herbert (the case presently appealed by the state of Utah to the federal 10th Circuit Court of Appeals and the LDS brief purports to address in which Judge Shelby invalidated amendment 3) – the argument that because Amendment 3 was motivated by “animus” the court should apply the strict scrutiny and not the rational basis test standard under the Due Process or Equal Protection clauses of the Fifth Amendement. This was perhaps the least important of the plaintiffs’ arguments in the district court, and it was rejected by Judge Shelby because it lacked case law support and was unsupported by evidence that Utah voters were uniformly motivated by animus. Animus was not in any way a basis for Judge Shelby's decision.

Applying the Due Process Clause of the Fifth Amendment, Judge Shelby ruled that Amendment 3 is unconstitutional because “Amendment 3 burdens the Plaintiffs’ fundamental right to marriage and is therefore subject to strict scrutiny.” Judge Shelby noted that the courts had only found a compelling state interest to deny marriage in certain narrowly defined situations such as children, the mentally incapable, or life prisoners. Judge Shelby concluded that there is “no reason that the Plaintiffs are comparable to children, the mentally incapable, or life prisoners. the Plaintiffs are ordinary citizens—business owners, teachers, and doctors—who wish to marry the persons they love.”

Applying the Equal Protection Clause of the Fifth Amendment, Judge Shelby concluded that “the State of Utah has not demonstrated a rational, much less a compelling, reason why the Plaintiffs should be denied their right to marry” because “the effect of Amendment 3 is only to disallow same-sex couples from gaining access to [marriage] benefits,” which the State cannot show furthers “responsible procreation and optimal child-rearing.”

The crux of the LDS brief is found in its assertion that “[t]he suggestion that religious support for husband-wife marriage is rooted in anti-homosexual animus rests on a false portrayal of our beliefs.” As such, the LDS brief is not a serious legal argument but more of a public relations pamphlet. However, in asserting Christianity’s lack of animus in opposing gay marriage, the brief echoes some of Utah’s arguments in the district court. And as a result of its reliance on tradition, unsupported assertions, and its illogic, actually does betray quite a bit of animus. The lady doth protest too much, methinks.

The LDS brief is divided into four parts, although the headings are organized somewhat differently.

1. The first part of the LDS brief argues that “faith communities and religious organizations have a long history of upholding traditional marriage for reasons that have nothing to do with homosexuality.”

My response: True enough, but applying the same logic, homosexuals want to marry for reasons that have nothing to do with homosexuality per se. It just so happens that, as Judge Shelby stated, “the Plaintiffs . . . cannot develop the type of intimate bond necessary to sustain a marriage with a person of the opposite sex,” which the state of Utah did not dispute. Homosexuals want to marry for all the same reasons heterosexuals want to marry and none of these reasons per se have anything to do with being heterosexual or homosexual.

2. The second part of the LDS brief argues that “Social science confirms” that “‘[a] family headed by two married parents who are the biological mother and father of their children is the optimal arrangement for maintaining a socially stable fertility rate, rearing children, and inculcating in them the [values] required for politically liberal citizenship.’” Thus, the LDS brief argues that the law must play an important “educational function” by encouraging opposite sex marriages.

My response: That a family headed by a male and a female is optimal is a bald assertion, not evidence. But assuming arguendo this is true, it is not an argument for depriving same-sex couples the right to marry. Here I’ll quote Judge Shelby’s superb language responding to this assertion:

“No one disputes that marriage benefits serve not just legitimate, but compelling governmental interests, which is why the Constitution provides such protection to an individual’s fundamental right to marry. . . . Here, the challenged statute does not grant marriage benefits to opposite-sex couples. The effect of Amendment 3 is only to disallow same-sex couples from gaining access to these benefits. The court must therefore analyze whether the State’s interests in responsible procreation and optimal child-rearing are furthered by prohibiting same-sex couples from marrying. . . . The State has presented no evidence that the number of opposite-sex couples choosing to marry each other is likely to be affected in any way by the ability of same-sex couples to marry. . . . Indeed, it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. . . . Because Amendment 3 does not currently permit same-sex couples to engage in sexual activity within a marriage, the State reinforces a norm that sexual activity may take place outside the marriage relationship.”

3. The third part of the LDS brief argues that the legal precedent (case law) does not support using animus as a reason to apply strict scrutiny analysis.

My response: This may be true but lack of legal precedent supporting animus as a basis for applying strict scrutiny analysis does not save Amendment 3. To quote Judge Shelby, “It may be that some laws neither burden a fundamental right nor target a suspect class, but nevertheless impose a discrimination of such unusual character that a court must review a challenge to such a law with careful consideration. But the court’s analysis here does not hinge on that type of heightened review.”

4. The fourth part of the LDS brief argues that “Utah’s and Oklahoma’s marriage amendments are not invalid under the establishment clause because they were informed by religious and moral viewpoints.”

My response: This is a straw man. Nobody has argued this. The plaintiffs in the underlying case did not make the argument. Nor, as Judge Shelby noted, does his decision “mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage.”

You must have given that several thousands dollars worth of thought. Who is paying you?

[byu71]

Ha. I am living rent-free in '71's head.

You are all welcome to join me. Plenty of room in here.

I will actually pay you to live in here. This has been a very enjoyable day.

As a matter of fact you would do me a huge favor, I would even pay you, to come to my funeral and introduce yourself as the "deep thinker" guy.

By the way, I know why you like SU so much. That last post had some pretty deep thought. At least as long as it was I assume it did, I didn't really read it.

[Topper]

I will actually pay you to live in here. This has been a very enjoyable day.

As a matter of fact you would do me a huge favor, I would even pay you, to come to my funeral and introduce yourself as the "deep thinker" guy.

By the way, I know why you like SU so much. That last post had some pretty deep thought. At least as long as it was I assume it did, I didn't really read it.

I didn't read it either after the first few paragraphs. I only read legal analysis if it pertains to my areas of moderate expertise, or if somebody pays me to read such a thing. I wonder what he wrote.

[byu71]

I didn't read it either after the first few paragraphs. I only read legal analysis if it pertains to my areas of moderate expertise, or if somebody pays me to read such a thing. I wonder what he wrote.

You can pretty much bet there is some gratuitous negative remark about LDS church leaders.

[Topper]

You can pretty much bet there is some gratuitous negative remark about LDS church leaders.

If it lacked that, one would doubt if SU wrote it, or if he had an associate draft it and provide him with a memo.

[snowcat]

I didn't read it either after the first few paragraphs. I only read legal analysis if it pertains to my areas of moderate expertise, or if somebody pays me to read such a thing. I wonder what he wrote.

Let me help you with SU posts...

blah blah blah mormon church sucks blah blah blah BYU sucks.