Same-sex marriage coming to Utah

[SoonerCoug]

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.

I think it's pretty obvious to any thinking person that the SCOTUS wanted to get the ball rolling on national legalization of gay marriage without doing it in a single sweeping ruling. Windsor started the ball rolling. Even Scalia admitted that national legalization of gay marriage would be the inevitable end result.

[UVACoug]

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.

It's not a new argument at all. Budgetary concerns are a well established governmental interest that will always pass the rational basis test. It is not a procedural argument, it is a substantive one. It is simply intellectually dishonest for courts to claim there is no rational reason to not spend money on gay marriages.

Rational basis analysis does not care about how much you are hurting the party that is being discriminated against. It only requires a marginally rational basis for the law. You can pretend that I am a bigot for saying that ... but it isn't me that is saying it. It is the case law. If you think that gays deserve some constitutional protection as a class, then you should be agreeing with me that courts should be applying heightened scrutiny to laws that discriminate against them. There are plenty of reasons to attack me, but this is not one of them.

[UVACoug]

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 difference between hispanic marriage and gay marriage is that a classification based on being hispanic would be a race-based (or ethnicity/national-origin based) classification, and would be subject to strict scrutiny ... not rational basis scrutiny. Such a law would clearly be unconstitutional because there is no "compelling government interest." If you want the government to treat gay couples the same way as hispanic couples, then you should agree with me that it is intellectually dishonest to apply rational basis scrutiny. There is no question that gay marriage should be constitutionally protected if the courts determine that gays are a suspect class.

I agree with you that the state's interest in having children raised in a two-parent household is a tenuous interest, at best. The research is just not very good on the issue and is too politically motivated to rely on one way or the other. I have my own personal beliefs on the issue, but they are just beliefs and cannot be proven with evidence that a court can consider.

It seems obvious, however, that the state does have an interest in promoting responsible procreation (not having children out of wedlock). Gay marriage has no impact on that interest, so the state isn't benefited by supporting gay marriage in that instance.




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[UVACoug]

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.

At this point, I agree that the government should get out of the marriage business all together ... which is why I find Judge Shelby's substantive due process analysis the most concerning. Finding a susbtantive due process right to state-sanctioned marriage means that a state that decided to no longer recognize any marriages (straight or gay) would be violating the fourteenth amendment. It is one thing to say that the equal protection clause requires the state to offer gay couples and straight couples the same marriage benefits. It is quite another to say that state-sanctioned gay marriage is a guaranteed, fundamental right that the state is constitutionally obligated to offer.

[UVACoug]

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).

I 100% agree.


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[Jacob]

I think it's pretty obvious to any thinking person that the SCOTUS wanted to get the ball rolling on national legalization of gay marriage without doing it in a single sweeping ruling. Windsor started the ball rolling. Even Scalia admitted that national legalization of gay marriage would be the inevitable end result.

Even Scalia! That's funny. Merry Christmas!

[cougjunkie]

First same-sex license was issued this morning in Utah County.

[Jarid in Cedar]

First same-sex license was issued this morning in Utah County.

I will be right back. I need to go see if hell froze over since i last visited

[scottie]

I will be right back. I need to go see if hell froze over since i last visited

I did see some pigs flying this morning.

[byu71]

First same-sex license was issued this morning in Utah County.

The more I have thought about it, Utah County is doing the right thing by following the judges order.

My hope is that progressives and liberals will in the future do the same and we can all stop with this bull crap civil disobedience thing when we thing the Judges are wrong.

Those who dissed the Supreme Court on the Bush vs Kerry thing should be ashamed of themselves.

[jay santos]

Dumb question. We have been watching different states pass gay marriage laws for the last few years. But I have never noticed this happen, ie all of a sudden out of the blue a judge declares gay marriage legal or anti-gay marriage laws unconstitutional or whatever and immediately they start doing gay marriages. Was Utah the first place this happened? Can I get Cliff's notes for why and how this happened?

[frank ryan]

The more I have thought about it, Utah County is doing the right thing by following the judges order.

My hope is that progressives and liberals will in the future do the same and we can all stop with this bull crap civil disobedience thing when we thing the Judges are wrong.

Those who dissed the Supreme Court on the Bush vs Kerry thing should be ashamed of themselves.

Do you mean Bush vs. Gore ?

[byu71]

Do you mean Bush vs. Gore ?

It sucks to be old. Getting half of anything right is an accomplishment.

[byu71]

Dumb question. We have been watching different states pass gay marriage laws for the last few years. But I have never noticed this happen, ie all of a sudden out of the blue a judge declares gay marriage legal or anti-gay marriage laws unconstitutional or whatever and immediately they start doing gay marriages. Was Utah the first place this happened? Can I get Cliff's notes for why and how this happened?

What I also found interesting was a discussion on either CNN or MSNBC. They were saying now that the people in a conservative state like Utah has come around, approval for gay marriage will rapidly move across the country.

I guess it is like when a cop gives me a ticket I totally disagree with but pay it. I guess I supported him.

[Pelado]

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.

So your craving has been a more gradual process?