The essence of judicial tyranny is when a single, unelected federal judge declares the laws and constitution of an entire state null and void with an opinion clothed in the barest of legal precedent.
Late on Friday afternoon, U.S. District Judge Robert J. Shelby overstepped judicial bounds, ignored the weight of settled precedent and insulted Utah’s electorate by striking down Amendment 3 to Utah’s Constitution, the provision that defines marriage as between one man and one woman.
How marriage is defined in American society is admittedly one of the great legal and political contests of our day. But in that contest, one would hope for fair play. Friday’s decision was made without the benefit of a trial. Acting on a motion for summary judgment, the decision rests on one judge’s creative interpretation of precedent.
Results-driven creativity from trial courts is nothing new. But given the complex legal and practical consequences associated with this decision, it was utterly irresponsible for Judge Shelby to not simultaneously stay the enforcement of his decision pending the benefit of appellate review.
Efforts to overturn the constitution of a state must involve greater care and deference than pre-trial proceedings. Such a decision, subject to full substantive review by an appellate court, should prudently preserve the status quo until that review is complete.
That would seem to apply even more forcefully in a review of how Utah defines marriage given that the enabling act that permitted Utah to join the union in 1896 specified that our state adopt constitutionally a traditional definition of marriage.
The suit, filed in March by three gay and lesbian couples — including one whose same-gender marriage was performed in Iowa — gained steam after the Supreme Court struck down the Defense of Marriage Act in June.
That Supreme Court decision, Windsor v. U.S., dealt with the federal definition of marriage.
The Windsor case, however, pointedly did not impact state laws defining marriage.
Indeed, in the Windsor case, Justice Anthony Kennedy, writing for the court, reasoned that “the tradition of recognizing and accepting state definitions of marriage” was a central plank in the Supreme Court’s decision that the federal government could not, through the Defense of Marriage Act, undercut the state of New York’s definition of marriage.
Instead of relying on the reasoning and clear language from the majority opinion from the Supreme Court, Shelby’s opinion relies on Justice Antonin Scalia’s sardonic dissent – which has no precedential value.
And instead of following the one Supreme Court case that has dealt squarely with a constitutional challenge to a state’s prohibition against same-sex marriage (Baker v. Nelson), Shelby’s opinion creatively stitches together “doctrinal developments” to ignore what arguably should bind this lowest of federal courts.
It is true that state efforts to restrict marriage on the basis of race have run afoul of the federal constitutional protections against racial discrimination. But as we scour the legal landscape, we find no 10th Circuit or Supreme Court precedent that prevents Utah from adhering to a traditional definition of marriage. Nonetheless, Judge Shelby’s blithe mix-and-match approach to legal argumentation has, for the time being, created a new class of same-gender applicants deemed “married” under the Utah Constitution.
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