Shelby's unfair, unnecessary overreach can only serve to further exacerbate political tensions

By Kraig Powell

For the Deseret News

Published: Tuesday, Dec. 31 2013 12:19 p.m. MST

Couples wait to get marriage licenses outside the Salt Lake County clerk's office, Monday, Dec. 23, 2013. At left are Addison Rose and Todd Markham. At right is Bobby Smith.

Ravell Call, Deseret News

Enlarge photo»

The developments that swiftly unfolded after federal judge Robert Shelby ruled that same-sex marriages must be allowed immediately in Utah were startling.

Gay and lesbian couples rushed to county offices across Utah to obtain marriage licenses as quickly as possible. County and state officials, caught off guard by the decision, engaged in a frenzy of legal appeals and contradictory reactions to the effects of the ruling. Shelby and the federal appeals court denied all requests for a stay of the ruling as same-sex marriages proceeded forward.

The sudden and significant consequences that Shelby’s ruling produced in Utah seemed to take both sides of the gay marriage debate by surprise. Most observers of politics expected that the legality of the prohibition on same-sex marriage in place in two-thirds of the states would ultimately be decided one way or the other by the U.S. Supreme Court.

But almost no one believed that any state would be ordered to issue same-sex marriage licenses against its own enacted laws until the U.S. Supreme Court gave a final answer to the question.

Regardless of whether one believes Shelby’s ruling is right or wrong, a stay of the ruling from the outset would have better served the long-term interests of our state and nation.

Many citizens who have contacted me since Shelby’s ruling have reacted as they would when an animal rights activist sneaks in under cover of night and releases all the mink on a mink farm.

Even if the mink farmer has a documented record of abuse, public opinion typically does not condone the activist’s failure to play by known and accepted rules, despite the activist’s good intentions.

The accepted rules of the modern U.S. legal system, as understood by most citizens, are that momentous conflicts between liberty and democracy under our nation’s Constitution will be decided in a very public fashion, with months of advance notice, by the full body of the U.S. Supreme Court.

When this happens, even citizens who disagree with the result can accept and respect the process that was followed.

In the American judicial system, judges play two very different roles, depending on the case before them. In one role, they decide cases that primarily affect only the litigants in that case.

In another role, judges rule on the constitutionality of laws passed by the Legislature. In this latter role, they are making policy for society in ways that directly touch the rights of citizens who have democratically enacted the law under review.

To maintain the high degree of legitimacy and respect that is necessary for our courts to function effectively, judges who render opinions on the constitutionality of laws passed by the people must look through a political and not just a legal lens.

No one would have been surprised if the availability of same-sex marriage in Utah had awaited a determination by the U.S. Supreme Court at some point in the near future. Shelby could have easily built an automatic stay into his initial ruling rather than opting for immediate implementation of his decision while the appeals are pending.

As it stands now, the premature action of a single unelected federal judge to immediately commence proceedings that contradict a policy duly enacted by the people of this state, when all sides of the debate know that the final word has yet to be spoken, strikes most objective observers as an unfair and unnecessary overreach that can only serve to further exacerbate political tensions in Utah and across the country.

Rep. Kraig Powell serves in the Utah House of Representatives. He represents District 54.

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