The same-sex marriage complications in Utah result more from Gov. Gary Herbert's lack of constitutional behavior than it does from Judge Robert Shelby's flawed ruling.
First, the case never would have been in front of Judge Shelby, an Obama appointee, had Herbert invoked the 11th Amendment. That amendment prohibits states, as sovereigns, from being sued in federal court without their consent. So the case against Utah's same-sex marriage ban could never have been in federal court had the governor simply asserted the state's sovereign immunity and precluded the case from moving forward unless it was in state court (where the state would have readily prevailed). By defending the case rather than asserting Utah's sovereignty, however, the governor waived Utah's immunity and left the case to drag on in front of a reckless judge.
Second, Article IV of the Constitution guarantees Utah a "republican form of government." One man making laws for everyone is not a republican form of government; it is a dictatorship. Herbert should have recognized this and so ordered state agencies to disregard Shelby's judicial fiat and abide by the state constitution as approved by the people.
The unfortunate story here is that Herbert took an oath to uphold the state and federal constitutions but does not appear to even know what they say. He is not alone among elected officials in this weakness. But his inaction has cost the state dearly.
Copyright 2015, Deseret News Publishing Company