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Drew Clark: Lawrence and Windsor won't trump Utah marriage laws

Published: Sunday, July 27 2014 12:13 p.m. MDT

Rick Bowmer, Associated Press

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SALT LAKE CITY – The Supreme Court on July 18 ruled in favor of Utah, for the second time in seven months, on the state’s legal efforts to preserve its definition of marriage. It’s worth dwelling for a moment on the significance of this ruling, which halted recognition of same-sex marriages effected by a federal district court.

The issue here is whether the U.S. Constitution imposes a requirement upon states to institute same-sex marriage. Questions about the definition of marriage have gotten entangled with the right to liberty for practices that must remain beyond the realm of government power.

There is a widespread presumption – among those often referred to as the nation’s cultural elite – that nationwide recognition of gay marriage is somehow inevitable. I don’t share that view. The court’s precedents support the view that marriage is an intrinsic power of state government. Changing a core aspect of marriage cannot be forced upon a state under the guise of the 14th Amendment. That amendment bars states from “abridging the privileges or immunities” of citizenship, depriving its subjects of liberty “without due process of law,” or denying “equal protection of the laws.”

It would be far more productive for society if elite opinion would instead consider this prospect: What happens if the Supreme Court upholds Utah’s marriage laws?

If Utah’s laws are upheld, traditional marriage laws in other states would also stand. Over time, some states might democratically change their laws in favor of same-sex marriage. They would also likely ensure protections for religious freedom. In the long run, this result would be better for all.

What are my grounds for this optimism? Some who believe that states should favor traditional marriage laws put their trust in what are sometimes called “morals legislation.” Those who support this view say that the state should be permitted to regulate sexual activity, even consensual adult sexual activity, when deemed immoral by a majority of citizens. Justice Antonin Scalia exemplifies this view. In Lawrence v. Texas (2003), where the high court struck down state laws against sodomy, he dissented: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

But Justice Anthony Kennedy, who wrote the majority opinion affirming the right of adults to form intimate homosexual relationships, had the better argument. In striking down the Texas law, Kennedy’s opinion speaks to the necessity of freedom of action within this very personal sphere of life.

“The petitioners are entitled to respect for their private lives,” Kennedy wrote for the court’s majority. “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

Why then, should marriage laws be subject to democratic decision-making, if states are barred from enacting laws proscribing consensual sexual relationships among adults?

Unlike sexual relations, marriage is a public act, not a private act. Marriage is a societal norm. It binds a child to a mother and a father. Those who would force states to recognize gay marriage are not protecting private conduct from the criminal law, but requiring public approval of private relationships. The Lawrence decision makes this public/private aspect distinction very clear: “It does not involve public conduct…. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

Yet too many people causally connect decriminalization of sodomy and recognition of same-sex marriage. Chronology may have an impact: The first such unions, in Massachusetts, were required by the state’s Supreme Court a few months following Lawrence.

There is no philosophical linkage between the liberty interest upheld in Lawrence and the bandwagon of federal district court decisions that say, in effect: Because the state may not prosecute two individuals who engage in homosexual activity, it must permit them to be married.

That is not correct. Our constitutional rights to life, liberty and property do not require anyone, let alone the state, to publicly recognize private acts. A truer live-and-let-live attitude permits consensual private activity without coercing public acceptance.

Last year, when the Supreme Court stuck down a federal law defining marriage as a union of a man and a woman in Windsor v. U.S., many commentators saw the decision setting the stage for national same-sex marriage. It did not help that Scalia, again dissenting from a majority opinion by Kennedy, made that argument himself.

Those worries need not be realized. In Windsor, every substantive reference to a marriage right refers immediately to a state’s decision to grant such a right. Neither Lawrence nor Windsor will be a support to those who would undermine state marriage laws, including those of Utah.

Drew Clark is opinion editor of the Deseret News. His email address is dclark@deseretnews.com.

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