"That amendment somehow makes Utah's marriage law beyond the pale? That's really a stretch. That's really an overreach," Duncan said. "I think it's an abuse of his authority. It's very clear that this isn't the final say on this issue. It was clear from the beginning that this was going to be decided by a higher court."
Duncan also questioned the judge's timing, calling it a "little disingenuous" given that the judge had said he was hoping to get a ruling written by Jan. 7. And then, "a couple of weeks later, he has a 53-page opinion already prepared."
"Then to have local officials say that's the final answer, we can't wait for one more day to have an appeal to go forward — that doesn't seem the typical behavior," Duncan said. "The judge clearly should have stated in his opinion that the ruling would have been stayed pending appeal to 10th Circuit, and his failure to do so is a little surprising."
Robert George, McCormick Professor of Jurisprudence at Princeton University, argues that the equal protection and due process amendment was a Civil War-era provision that has little to do with same-sex marriage. It was passed to offer recently freed slaves and their descendents protection regardless of race or ethnicity, he said.
"Pro-same-sex marriage groups around the country have been claiming that this 19th-century provision really means that states cannot define marriage the way that they have and every other society in human history have," George said. "The court presumes to claim that the judge's own view of the true nature of marriage was the Constitution's view, but the judge is clearly wrong about that because the Constitution has no view (on same-sex marriage)."
During arguments before the court earlier this month, state attorneys defending Utah's definition of marriage said the case doesn't turn on who is right and who is wrong about what marriage should be, but on who should decide.
"The court agrees with Utah that regulation of marriage has traditionally been the province of the states, and remains so today. But any regulation adopted by a state, whether related to marriage or any other interest, must comply with the Constitution of the United States," the judge wrote.
George patently disagreed with Shelby's view.
"The reality is that the (U.S.) Constitution does not embrace one or the other of the competing views of marriage that Americans are divided about right now, and that means that the division should not be imposed on the people by unelected judges," he said. "It should be resolved by the people at the ballot box either directly in referendums or acting through their representatives in the state legislatures."
The state's attorneys contended that the Constitution does not prevent Utahns from defining marriage as between a man and a woman with children's interests at the forefront, and they asked Shelby to throw out the lawsuit. The judge denied their motion for summary judgment Friday.
"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," Shelby said in his ruling. "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."
Gay couple Derek Kitchen and Moudi Sbeity and lesbian couple Laurie Wood and Kody Partridge filed a lawsuit challenging the amendment in March after Salt Lake County denied them marriage licenses. Karen Archer and Kate Call, who were legally married in Iowa, joined the suit because Utah does not recognize their marriage as valid.
Sbeity said Friday that the news was "very exciting" for him and Kitchen. He said he believes the public's opinion of same-sex marriage has changed and progressed in recent years.
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