Comments about ‘Shelby's unfair, unnecessary overreach can only serve to further exacerbate political tensions’

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

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LDS Liberal
Farmington, UT

He ruled on the stupied "All-or-Nothing" law you guys in the State Legislature gave hime.

All he had was a simple Thumbs up, Thumbs down vote.

Tell you what --
You are a State legislator,
Rather than writing political opinion letters to the Deseret News whinning about it,
You are one of the very few people in this State that can actually DO something.

But,
I suppose as a "politicain" it's easier and looks better to make a public statement,
than it is to actully DO anything.

Schnee
Salt Lake City, UT

You say it's an action by one judge to not issue a stay, but hasn't Utah been rejected 3+ times in trying to get a stay, by various levels of courts?

Plus, who are we kidding here? Tensions would've also grown with a stay or a ruling against same-sex marriage. It'd just have been the other side that'd have been annoyed rather than the side annoyed with the ruling and lack of stay.

Hutterite
American Fork, UT

I'm not sure I buy into the argument that the judge was obligated to see this case through a political as well as legal lens. This judge was not, as is often pointed out in these discussions, elected. The realm of a federal judge is one of laws, not politics, and this was a pretty straight up or down case. Maybe it appears odd that the judge didn't leave it in administrative limbo; on the other hand it's refreshing to see it encounter a fairly cut and dried situation and deal with it directly and forthwith, rather than miring it in obfuscation only to arrive at the same conclusion.

Jeffsfla
Glendale, CA

Sorry I cannot agree with you. Judge Shelby was asked to rule using established constitutional writings. He can't make new laws...all he can do is make sure that laws established, either by executive or legislative branches and yes including voter passed legislation stand up to consitutional scrutiny. None of these groups get a pass on judicial review, particularly the voter passed initiatives. We are not a MOB rule society and our minorities deserve the protection of the judiciary branch.

Finally, Judge Shelby has determined gays and lesbians have waited 10 years to reach this point in Utah. To further wait would mean there would have to be compelling proof the law will standup up to Appellate scrutiny. Clearly he does not believe it will and the Appellate court seems to agree with him. That is why they refused the stay.

I think it is time to put away you animus and realize these citizens deserve the same rights as you have always had.

digbythefox
Logan, UT

Seems like most of the comments here agree so far, and I'm with them. I've read through the 53-page decision, and it's a very thoughtful look at the current laws. Throughout, Utah fails to bring any compelling argument for keeping the law, but the other side is compelling for why the law harms one group. Anyone who has the time should read through the decision; you can find it through Google.

Unfortunately, the writer of this article seems to know very little about the history of gay marriage in the US. Shelby acted much like other judges before him, and many repeatedly refused a stay. Shelby is not acting without precedence.

My partner and I have considered rushing and getting married. We've been together for almost three years now, but it's something we'd rather plan out. I'm excited that we can do it now. Hopefully in a few months we'll still have this right.

Irony Guy
Bountiful, Utah

I respectfully disagree with Rep. Powell. The notion that a judge has "two jobs" is not true. Any case a judge decides automatically becomes a precedent with constitutional implications. Mr. & Mrs. Loving were sentenced in 1958 by a Virginia JP to 1 year in jail for having a mixed marriage. The JP's decision obviously had constitutional implications. And when the federal court reversed it, nobody "stayed" the right of people to a mixed marriage. The effect was immediate.

Mike Richards
South Jordan, Utah

Does the Constitution protect a man's "right" to claim that he is a woman when all medical evidence collected by doctors who examined him show that his gender is clearly evident and that he does not have the physical characteristics of a woman?

Does the 14th Amendment allow a citizen to demand special right based on "feelings" when those demands contradict all physical evidence?

I'm not being factious. If rights are based on "feelings" when physical evidence contradicts those "feelings", what are the limits? What protects society against citizens who "feel" that they can redefine marriage, that they can redefine family, that they can freely teach children that "feelings", not physical characteristics, determine gender? What protects children from being told that because they admire a Coach or a Scoutmaster, that they are exhibiting their homosexual side? Who's going to protect children who are called homophobic when those children "feel" that homosexuality is wrong?

We are not identified by what we "feel" we are. Equal protection does not give anyone the right to claim that he is not who he appears to be because, in his mind, he does not want the body that his Creator gave him.

2 bits
Cottonwood Heights, UT

IMO Judges should be limited to striking down laws they find unconstitutional. But they should not be enacting their own laws at the same time (THAT is reserved for the Legislature and the people).

So the judge should have struck down the amendment, but in this case they over-reached and actually enacted NEW laws.

Same sex marriages were not happening in Utah before the amendment.... so where did the law come from that all counties must issue licenses immediately (from the bench).

That's NOT the role of the Judicial Branch. They can nullify a law... but they should not CREATE new laws at the same time. We were not conducting same sex marriages before the amendment, so when it was struck down we should have reverted to where we were BEFORE the amendment (not with a whole new batch of laws some Denver judge placed on the people of Utah).

----

I think the writing is on the wall that no restrictions on the nature of the marriage relationship can be allowed (same sex, more than one, close relative, etc). But at least do it correctly (not with judges making new laws when striking ones they don't like).

procuradorfiscal
Tooele, UT

Re: ". . . unfair and unnecessary overreach that can only serve to further exacerbate political tensions in Utah . . . ."

Yeah, that's what callow, doctrinaire liberals want -- political tension.

And, Shelby knew he could create it and keep it going, regardless of the rulings of courts above him, by deciding as he did, both factually and procedurally.

And, of course, we ain't seen nothing, yet. Once the Supreme Court reverses, properly citing the
"political question doctrine," and all the overanxious, unwise LGBT couples begin to wave their void marriage certificates, bleating about how Utah destroys marriages, it'll be us, real Utahns, that they'll be blaming, not the ethics-challenged, agenda-driven "judge" who is the real culprit.

Of course, we know that was the plan all along.

Liberals. So predictable.

LDS Liberal
Farmington, UT

Mike Richards
South Jordan, Utah
11:56 a.m. Dec. 30, 2013

=========

1. Mike -- You are not even on the same page as the rest of us.
Gay people are not the same as Transgender.
Stop mixing them up.

2. God made some people Hemorphidites.
How do you account for that?

3. The Creator said -- As a man (woman) thinketh, so is he (she).

4. God is not in the United States Federal Judiciary.
If you do not want Allah or the Flying Spaghetti Monster calling the shots, Keep God out of it.

JeffreyRO555
Auburn Hills, MI

"I think the writing is on the wall that no restrictions on the nature of the marriage relationship can be allowed (same sex, more than one, close relative, etc)."

Well, no, the legal principles driving the country to legalize same-sex marriage, primarily equal protection of the law, does not apply to multi-person marriages or close relative marriages. In these two situations, all persons are prohibited equally from participating in those kinds of marriages. When same-sex marriage is illegal, only gay people are prohibited from marrying, a clear and obvious violation of equal protection guarantees.

There is a huge difference between being told you can't have a spouse at all, and being told you can't have more than one spouse, or a sibling spouse.

Stalwart Sentinel
San Jose, CA

Apparently, Mr. Powell does not subscribe to the notion that "justice delayed is justice denied." Very sad.

procuradorfiscal - Just to make sure I understood you, in your uninformed opinion, this will ultimately be decided by the SCOTUS incorrectly applying the political question doctrine? Wow, you guys sure are desperate.

Grasping at straws - Conservatives... so predictable.

procuradorfiscal
Tooele, UT

Re: ". . . the legal principles driving the country to legalize same-sex marriage, primarily equal protection of the law, does not apply to multi-person marriages or close relative marriages."

Calling Shelby's reasoning a "legal principle" dignifies it more than it deserves. It's a political principle -- "buy needed votes where you can" -- nothing more.

"Big tent" liberal politics has to buy votes from so many unaffiliated, mutually contradictory constituencies, it has to make distinctions without a difference -- like equal protection of the law only applies to the constituencies they favor, not to anyone else.

In Orwellian newspeak, that translates into -- "All animals are equal, but some animals are more equal than others."

The liberal motto.

AlpineBob
Eltopia, WA

A lot of hand-wringing and denial here. While I get the fairly minor point that judge's rulings sometimes have larger impact than the immediate parties--I don't agree with the notion that somehow there are two distinctly different job descriptions. Having read the full 53 page ruling I was struck that ruling was well-articulated and grounded in both what appears to be sound legal arguments (I admit I'm not a lawyer though) and an empathy for both the state of Utah and parties involved.

I think his decision is going to stand.

As for others that seem to want to cast aspersions that the judge is "liberal" and what passes as typical--I can't help but remind them that one of their other posterchildren of conservative values also defected some time ago. Theodore Olsen changed his tune years ago..as I think 20 or 30% of the public has as well.

You can keep wringing your hands if you want, but it's coming across about the same as segregationists did after 1964--on the wrong side of history.

Schnee
Salt Lake City, UT

@procuradorfiscal
"Yeah, that's what callow, doctrinaire liberals want -- political tension."

That depends, is a lack of political tension defined as "Republicans/conservatives in this state getting whatever they want without opposition"?

"Once the Supreme Court reverses, properly citing the
"political question doctrine," and all the overanxious, unwise LGBT couples begin to wave their void marriage certificates"

Oh, you don't have to worry about that, since you're not going to win the appeal.

"It's a political principle -- "buy needed votes where you can" -- nothing more."

So... you mean to tell me that an unelected federal judge who has no use for any sort vote seeking in a state where Democrats are pretty much non-existent beyond Salt Lake City/County gov't... is doing this for political vote gathering purposes?

Ranch
Here, UT

One would hope that an elected representative would better understand the role of the Judiciary.

@2 bits;

The only law forbidding same-sex marriages in Utah was struck down. Since it was no longer illegal, it was clearly legal.

4601
Salt Lake City, UT

Shelby's opinion is reminiscent of the judge who noted, "You can call it pornography if you want, but I know what I like."

Tyler D
Meridian, ID

Based on some comments here (2 bits insightful comment notwithstanding) and the previous article (Judge or King?), this issue seems far too emotional to have a reasonable discussion about the merits of judicial activism vs. judicial restraint.

I knew it was bad when LDS Liberal attacked me under the previous article as someone who listens to AM radio and tramples the constitution – really? Have you never read one comment I’ve made on DN (90% of which probably agree with you)? Wonder if this is how Caesar felt when he saw Brutus (with a knife) for the last time.

So be it…

I’ll just say this for everyone applauding this decision (not the end result, which I applaud as well) – be careful what you wish for.

If judges can exert this amount of power to make law & social policy, they can certainly do it on a whole host of issues that will make your heads spin.

And with the conservative strategy of trying to pack the courts (why Reid was forced to end the filibuster rule for judicial nominees), you may regret this power judges now have.

LDS Liberal
Farmington, UT

Anyone else remember Jon Huntsman Jr. saying the GOP needed to stop and rethink where this was going,
and they threw him under the bus for it?

Anyone?...

The Real Maverick
Orem, UT

Is it Monday? Oh it is! It must be! It's the weekly whine from the right!

Next week we will be on "the left's war on New Year."

And the week after that will be some complaint about Obama.

And after that another interview with Mitt Romney and a fantasy of what life would be like if he had won.

Then we will repeat some other attack on Utah by the mean ol federal government.

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