Same-sex marriage coming to Utah

[Non Sequitur]

The wrong way to do it is to have a pre-determined outcome and come up with some reasoning to justify it. That's what I believe Mr. Shelby did, disgracefully.

Heaven forbid a judge start with a preconceived opinion and work backwards to justify it. I'll bet you $500 right now that I can guess when this gets to the Supreme Court, which side of the issue Scalia will come down on. I can't tell you the reasoning he will use to justify his opinion, but I know the opinion. Do you want to take that bet?

[TripletDaddy]

Heaven forbid a judge start with a preconceived opinion and work backwards to justify it. I'll bet you $500 right now that I can guess when this gets to the Supreme Court, which side of the issue Scalia will come down on. I can't tell you the reasoning he will use to justify his opinion, but I know the opinion. Do you want to take that bet?

I wonder who will write the dissenting opinion on this given that the legal reasoning for disallowing gay marriage is so specious (state budgetary concerns aside). I wonder if any of these people will want to go down in history as the crazy bigot who argued against gay rights. Ideally this would be a unanimous decision, since the SC justices are there simply to call balls and strikes (allegedly).

[Topper]

Heaven forbid a judge start with a preconceived opinion and work backwards to justify it. I'll bet you $500 right now that I can guess when this gets to the Supreme Court, which side of the issue Scalia will come down on. I can't tell you the reasoning he will use to justify his opinion, but I know the opinion. Do you want to take that bet?

Scalia is a fantastic legal mind, and he pays homage to the concept of strict constructionism, except when it doesn't suit his fancy. I like Scalia and many of his decisions. He's almost always worth reading. (I have heard he's not always polite to lawyers arguing cases though).

[Jeff Lebowski]

You people sure define "debate" and "argument" in a way that is foreign to me. In the current case, I raised a new topic of the cost of the defense of the Utah constitutional amendment in federal court and whether it was worth it. I thought it of general interest, so I posted along with a few quick thoughts on the topic. The response was 1: use of a hostile epithet by DDD and 2: mockery by Cardiac. I respond in kind by merely pointing out their ignorance, and yet it is I who does not argue well. Who does not have a "measured and genteel" approach to debate. Interesting. If only I was aware we were engaged in argumentation and debate I would have been more genteel!

You seem to be constantly misunderstood by everyone. Perhaps Marshall Givens can help:

[UVACoug]

We aren't on the same page but maybe in the same chapter. I don't find his ruling "activist" and I don't think he's inventing a new Constitutional right. I think he should have granted a stay pending further review but have no issues with him not doing that as I don't think he's harming anything (I'm fully aware I'm biased here on the stay issue). In some regards I dread this whole thing since my family is visiting from Utah at the end of January and I'm sure I'm going to have to hear about this a million times over.

I must have misunderstood your earlier post then.

[UVACoug]

At the end of the day, who cares if the judge is "activist"? I certainly don't. Shelby did what was right. I don't care about procedure and I don't care about precedent. I care about getting it right. If there were message boards in the 60's, you would have Mississippi lawyers bemoaning the "activist" judges that were forcing integration against the will of the people. I would love to hear UVA, in one sentence, simply address what is right.

It's not the role of judges to "do what is right." If that were the only thing that mattered, judges would be equivalent to kings (or tyrants). Do you not think there needs to be some constraint on judicial authority? Precedent is that restraint ... and to set it aside for what you feel is "right" undermines the entire judicial branch of government.

[Topper]

It's not the role of judges to "do what is right." If that were the only thing that mattered, judges would be equivalent to kings (or tyrants). Do you not think there needs to be some constraint on judicial authority? Precedent is that restraint ... and to set it aside for what you feel is "right" undermines the entire judicial branch of government.

Non-attorneys will articulate what they mean in a non-legal way. I suppose some want judges to do what the judges believe is right, so long as it agrees with those persons ideas of what is right.

However, using legal analysis. A judge should not cure the sloppy work of the advocates before him or her, but if the participants have properly followed proper procedure, then a judge should be impartial in evaluating the evidence presented, even though the judge cannot operate as if he or she never lived or had experiences. In fact, we want experienced judges because they have judicial, legal and life experience. It isn't just a legal question, but one which requires understanding of human nature, psychology and complex factual scenarios.

The judge then applies from an assortment of legal principles what he or she believes is appropriate to render a decision. That is the lay person's "doing what is right".

[UVACoug]

I am very open to the concept of strict constructionism, but do you really believe judges are blind as to what the result is they wish to achieve?

I served as a judicial clerk, have relatives serving as judges and justices, and know many judges personally. It just doesn't work that way. In reality, most judges evaluate the facts to determine what they are in an impartial manner if you have a good judge, try to determine if there is settled law or whether the law is changing and see how they would like to decide in light of the facts and prevailing law, or how a reasonable judge could see the law evolving. But the facts drive the law, not the other way around usually.

I was also a judicial clerk and the judge I worked for is consistent with what you described. Now that I have been practicing for a little while, my experience has been that there are many judges that don't fit into that description ... especially inexperienced judges that are used to being advocates. The fact that Judge Shelby had only been a judge for a few months before receiving this case bolsters my belief (which is also based on other personal experiences) that he he came into the case with a predetermined result in mind and did his best to come up with a reasonable rationale. I think it is fair to say that most judges try to be impartial, but on hot button issues like this ... its hard not to come in without a desire to see a predetermined result. I have a lot of respect for Judge Shelby, and based on what I know about him I think he will be a good district judge for a long time (this case ruined any chance that he will be confirmed to a higher court). I just think his decision in the gay marriage case was agenda driven and refusing the stay exposed a disrespect for the process that is somewhat concerning.

[Topper]

I was also a judicial clerk and the judge I worked for is consistent with what you described. Now that I have been practicing for a little while, my experience has been that there are many judges that don't fit into that description ... especially inexperienced judges that are used to being advocates. The fact that Judge Shelby had only been a judge for a few months before receiving this case bolsters my belief (which is also based on other personal experiences) that he he came into the case with a predetermined result in mind and did his best to come up with a reasonable rationale. I think it is fair to say that most judges try to be impartial, but on hot button issues like this ... its hard not to come in without a desire to see a predetermined result. I have a lot of respect for Judge Shelby, and based on what I know about him I think he will be a good district judge for a long time (this case ruined any chance that he will be confirmed to a higher court). I just think his decision in the gay marriage case was agenda driven and refusing the stay exposed a disrespect for the process that is somewhat concerning.

I have not read the briefs, don't know the man, and cannot comment upon his predisposition.

The issue I haven't paid much attention to is the failure to grant the stay pending appeal. I seem to have read the State screwed up by not requesting a stay prior to issuance of the decision. Once the State messed up its procedure, remember rule of law, the Judge basically couldn't grant the stay. You have to be on your toes and it appears the AG for Utah is not.

[FMCoug]

You seem to be constantly misunderstood by everyone. Perhaps Marshall Givens can help:

[UVACoug]

Non-attorneys will articulate what they mean in a non-legal way. I suppose some want judges to do what the judges believe is right, so long as it agrees with those persons ideas of what is right.

However, using legal analysis. A judge should not cure the sloppy work of the advocates before him or her, but if the participants have properly followed proper procedure, then a judge should be impartial in evaluating the evidence presented, even though the judge cannot operate as if he or she never lived or had experiences. In fact, we want experienced judges because they have judicial, legal and life experience. It isn't just a legal question, but one which requires understanding of human nature, psychology and complex factual scenarios.

The judge then applies from an assortment of legal principles what he or she believes is appropriate to render a decision. That is the lay person's "doing what is right".

I don't agree with your description of the judicial role at all ... at least not at the trial court level. It is not the trial court's role to decide what the law is. It is certainly not the trial court's rule to conveniently ignore precedent, or twist it to mean something else, based only on what the judge believe. Based on his testimony to the Senate, Judge Shelby also believes it would be a violation of his oath to do such a thing:

3. In your opinion, how strongly should judges bind themselves to the doctrine of stare
decisis? How does the commitment to stare decisis vary depending on the court?

Response: As I understand it, there are certain narrow and limited circumstances in
which the Supreme Court and the courts of appeals may revisit prior decisions. This
principle does not apply to district courts, which are bound to follow the established
precedents of the appellate courts. It would constitute a violation of a district judge’s
oath to depart from this duty.

Citation: Judge Shelby's Responses to Questions for the Record from Senator Klobuchar

If you want to see a distinction between what I think the correct role of a trial judge is, compare Judge Shelby's opinion in the gay marriage case to Judge Waddoups' decision in the polygamy case. Judge Shelby did what you suggest is proper ... hand-select assorted principles (ignoring other relevant and controlling ones) in order to achieve a result that you believe in. Judge Waddoups, on the other hand, followed all the existing precedent that was relevant and reached a result that he personally struggled with (why do you think it took over a year to write that decision, as opposed to a few weeks). In my view, Judge Waddoups did the right thing. Even if you think the constitution doesn't protect bigamous cohabitation, such a reading of the constitution is not permissible under current precedent. It wasn't Judge Waddoups role to ignore that precedent to reach a desirable result. If the appellate courts think that is appropriate, that is their role. If we have trial court judges manipulating precedent to fit their moral view of the world, there will never be any consistent rule of law in our society. That is an unworkable model in a democracy. People must be able to predict legal outcomes at the trial level as much as possible.

[Topper]

UVaCoug, Let me get this straight.

You're of the opinion that a US District Court Judge has no duty to decide whether a state constitutional provision is inconsistent with the US Constitution in light of US v. Windsor?

Your argument is one of histrionics and ignoring what you don't like.

It seems to me, Judge Shelby answered the question presented to him by the case presented to him. Another judge could have reached an alternate conclusion perhaps.

And you criticize Judge Shelby for making a decision in a few weeks, rather than sitting on it for a year? That sounds very crass. In cases involving urgent matters, lawyers will work around the clock and may in fact render a better decision by working on it non-stop.

I could have predicted this outcome. I am bit surprised it happened in Utah with a Republican appointed judge, but apparently he has some libertarian leanings and beliefs in his judicial understanding.

You are basically saying, you believe the law will dictate the same result no matter who interprets the law as applied to a given set of facts and that anybody who disagrees with you is ignoring the law or precedent you like.

[wuapinmon]

This article compares laws against homosexual marriage with anti-miscegenation laws. http://hnn.us/article/4708

The fifth, and final, argument judges would use to justify miscegenation law was undoubtedly the most important; it used these claims that interracial marriage was unnatural and immoral to find a way around the Fourteenth Amendment's guarantee of "equal protection under the laws." How did judges do this? They insisted that because miscegenation laws punished both the black and white partners to an interracial marriage, they affected blacks and whites "equally." This argument, which is usually called the equal application claim, was hammered out in state supreme courts in the late 1870s, endorsed by the United States Supreme Court in 1882, and would be repeated by judges for the next 85 years. - See more at: http://hnn.us/article/4708#sthash.Wzd1AkST.dpuf

[Topper]

Jacob and UVaCoug will like this next bit.

In 2006, as the “marriage equality” movement was gaining steam within the LGBT activist community, dozens of prominent gay, lesbian, bisexual and transgender activists signed a statement called ++“Beyond Same Sex Marriage” (PDF)— outlining an agenda that would expand family policy in America to include gay couples as well as other “non-traditional families” rather than simply shoe-horning gay folks into the existing structures (and strictures) of hetero-normative marriage. Census data were already showing that the majority of American families were no longer fitting the traditional, nuclear mold. Today, four out of five families fall outside that dated construct. The “Beyond Same Sex Marriage” statement read, “To have our government define as “legitimate families” only those households with couples in conjugal relationships does a tremendous disservice to the many other ways in which people actually construct their families, kinship networks, households, and relationships.” To the mainstream gay-rights activists assuring that they really just wanted to strengthen conventional marriage, this liberationist wing held up a different vision—of dismantling civil marriage as we know it to make room for modern family needs. (And lest this seem like such a radical and untenable political agenda, conservatives such as Glenn Beck and libertarians like Rand Paul support getting government out of the marriage business.)

http://www.thedailybeast.com/article...s-in-2014.html

[UVACoug]

UVaCoug, Let me get this straight.

You're of the opinion that a US District Court Judge has no duty to decide whether a state constitutional provision is inconsistent with the US Constitution in light of US v. Windsor?

Your argument is one of histrionics and ignoring what you don't like.

It seems to me, Judge Shelby answered the question presented to him by the case presented to him. Another judge could have reached an alternate conclusion perhaps.

And you criticize Judge Shelby for making a decision in a few weeks, rather than sitting on it for a year? That sounds very crass. In cases involving urgent matters, lawyers will work around the clock and may in fact render a better decision by working on it non-stop.

I could have predicted this outcome. I am bit surprised it happened in Utah with a Republican appointed judge, but apparently he has some libertarian leanings and beliefs in his judicial understanding.

You are basically saying, you believe the law will dictate the same result no matter who interprets the law as applied to a given set of facts and that anybody who disagrees with you is ignoring the law or precedent you like.

That's not even close to what I am saying. I am saying it is improper for a trial court judge to ignore existing Supreme Court precedent to recognize a new fundamental due process right for which there is no precedent. Windsor didn't recognize a federal due process right to gay marriage. Trial courts don't get to make up new "fundamental rights." I do believe the law should be as predictable as possible. It shouldn't be up to interpretation. A judge's first responsibility is to APPLY the law as it exists, not to "interpret it" in order to get a desired result. There are times when there is an absence of law where a judge has to engage in the "interpretation" you suggest. Those circumstances are the exception, not the rule. This is not a circumstance where there is an absence of existing law. It is a circumstance where a judge decided that it was time to set aside existing law that he disagreed with. That is not his role.