Comments about ‘Richard Davis: Judge Shelby was wrong, but gay marriage momentum is a reality’

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Published: Wednesday, Jan. 1 2014 12:00 a.m. MST

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Eltopia, WA

Hmm....Deseret's hand wringing seems to be slowing down a bit. Good for you.

Parkesburg, PA

"In an age when too many people discount marriage through simply living together or opt too hastily for divorce, perhaps we should be heartened to see so many people embracing the institution of marriage."

Yes, yes, yes! It was right there before our eyes the entire time. Why did it take so long for many of us to see the obvious?

Mike Richards
South Jordan, Utah

When I was a boy, I delivered newspapers for the Deseret News. On its masthead were the words, "We stand for the Constitution of the United States". There is no evidence that the Deseret News still stands for the Constitution of the United States. Mr. Davis' second paragraph stated that Judge Shelby used the Court's dissent opinion as the basis for his judgement and then went on to compare Shelby's decision to a federal judge overturning Roe v Wade, based on the Court's dissent opinion. Mr. Davis then told us that Shelby was an activist judge who legislated from the bench.

Where was the demand to do something about that travesty? Is "hand-wringing" enough? Should the masthead now read, "You better not violate the Constitution or we will wring our hands!"?

When a judge knowingly uses the dissent as the basis for his opinion and then acts as a legislator, his "legislation" is illegal and therefore void. The results of that "legislation" is also void.

It's time that the Desert News remember that the 4th Estate has a duty to fulfill and "hand-wringing" is not that duty.

Tyler D
Meridian, ID

This is what judicial activism looks like folks – and it is an equal opportunity offender as Mr. Davis cogently points out (e.g., a conservative judge declaring life begins at conception).

We either live in a republic or we do not. We either have the right of self-government or not. States are either laboratories of democracy (within constitutional limits) or they are not.

When judges exert this amount of power all of these are threatened.

All that said – the faster society sheds it religious bigotry against gay people and stops treating them as 2nd class genetic malfunctions that need to be cured, the better. They are people whose sexual orientation is about as interesting as being left-handed, and should have about the same level of concern for any heterosexual.

There is nothing wrong with them and they don’t need to be fixed (anachronistic Bronze Age books written by shepherds notwithstanding).

Tooele, UT

Re: "The claim could be made that even if his decision is overturned . . . it would be improper to void the marriages that were performed under his court order."

It could, and probably will be made, but, in the end, will be discarded.

Since the sole issue is validity of Amendment 3, when the Supreme Court upholds it -- as it has telegraphed it will in EVERY recent case -- no logic or reasoning could make marriages performed in violation of it valid.

The fact of an inevitable reversal of his opinion is the primary reason Shelby should have curbed his agenda-driven activism, at least to the extent necessary to avoid the hurt created by his wholly unsupportable decision.

A thousand, or so, Utahns will have hopes unnecessarily crushed, and state and Nation will be engaged in expensive and unnecessary litigation, vis-s-vis their, and their families' legal status under any number of liberal giveaway statutes, for years to come.

Of course, it's hard to believe that wasn't Shelby's intent all along.

And, BTW, Prof -- kudos for the reasoning evident in the rest of your op-ed.

J Thompson

If another federal judge had overruled Roe v Wade using the dissent opinion, 55,000,000 unborn babies would not have been aborted in the United States. That would have been the right outcome, but the wrong process. The Supreme Court ruled that a woman has the right to have the life within her destroyed. The Supreme Court ruled that a doctor who has taken an oath to preserve life has the right, when asked by that woman, to take life. As abhorrent as that decision was, it became the law of the land. Our creator will deal with everyone involved. He will not rely on the dissent opinion as the basis for His judgement.

We are a nation governed by law, starting and ending with the Supreme Law of the Land. That document forbids anyone except Congress to pass laws that are binding on the nation. That document does not allow any judge to legislate from the bench.

The "end" does not justify the "means". Justice may be delayed but it will not be denied. No judge will escape the final "verdict".

Bountiful, UT

There's another precedent for both a small number of people deciding public policy, and for states rights being used as the excuse to delay implementation of policy:

Brown vs Board of Education, in 1954, where the Supreme Court decided that "separate but equal" was not equal, and segregated schools in Arkansas were integrated, in a highly emotional atmosphere, by force, with National Guard troops protecting the African American school children who were the first to cross the racial barrier in education.

Naturally, the states rights advocates throughout the South resisted this decision and its implications, and in 1963, by wife was still attending segregated schools in Kentucky. "What happened in Arkansas is a problem for Arkansas, not Kentucky".

So, this type of foot-dragging is certainly not new.

Huntsville, UT

"First, U.S. District Judge Robert Shelby was wrong ..."

No he wasn't. The US Constitution ALREADY has the 14th Amendment and that doesn't require the SCOTUS to say that it applies to ALL American citizens, the 14th Amendment already states that.

@Mike Richards;

If you stood for the Constitution of the United States, you'd support equality under the law; even in marriage. Anything else and you're telling yourself lies.

@Tyler D;

I often agree with you; but this is not "judicial activism". This is a perfect example of the judiciary doing it's constitutionally mandated job.

Salt Lake City, UT

The real problem Judge Shelby creates, regardless of one's views concerning the merits of the case, is that everyone knows the issue will ultimately be decided by the United States Supreme Court. Given that fact it seems foolhardy, at best, for a district court judge to require immediate implementation of his decision when it is possible a circuit court of appeals or the U.S. Supreme Court will reverse that decision. Accomplished marriages then may turn out to be illegal, and cleaning up the ensuing mess will be a nightmare for everyone involved.

Charleston, WV

There was NOTHING WRONG with Judge Robert Shelby's ruling. It was not his job to uphold the precise will of the majority of the people. That's what elections are for. The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level. Therefore, it is not "activism" nor oligarchy on the part of judges to declare that Gay and Straight couples should be treated equally under the law, rather it is an example of judges performing their rightful duty.

Tyler D
Meridian, ID

@RanchHand – “I often agree with you; but this is not "judicial activism".


So if there is such a thing as judicial activism (some say not) what does it look like? Was Roe v Wade or Bush v Gore or Citizens United (pick an example) cases of activism?

If so, how were they fundamentally different from this case?

And you may be right and I may have this wrong, but it will take a much more robust discussion to convince me – and so far we haven’t seen it here. [If activism only means (for a conservative) liberal decisions they don’t like, or (for a liberal) conservative decisions they don’t like, then we can dismiss that conclusion out of hand as logically untenable.]

But when a judge’s decision has the effect of creating social policy that has never been in effect before and certainly was not on the mind of the original authors of laws or amendments (the 14th), then that decision starts to take on “walks like a duck, quacks like a duck, and looks like a duck” qualities (i.e., judicial activism).

American Fork, UT

Regardless of how it played out, perhaps we should take heart so many are willing to embrace marriage. This genie isn't going back in the bottle, and maybe we should work on managing it forward instead of attempting to recreate a shameful 'governor wallace in the schoolhouse door' incident.

Salt Lake City, UT

"it would be improper to void the marriages that were performed under his court order."
I hope Justice Sonia Sotomayor directly asks the state attorneys about this. Does Utah seek to void marriages or honor them?

Salt Lake City, UT

@Mike Richards
Shelby used a part of the dissent that was detailing the implications of what the majority ruling would mean for this hypothetical case under their logic.

"The fact of an inevitable reversal of his opinion"

You're going to be in for some disappointment. The courts have done this once before when they struck down interracial marriage bans, there's a precedent.

Steve C. Warren

It seems to me that there were two primary ways to look at whether to grant a stay. First, a judge might grant a stay by viewing the case as unsettled law needing to be settled by the Supreme Court, or he could take the view that plaintiffs constitutional rights are being denied and that defendants (the state of Utah) have little likelihood of prevailing; therefore, a stay should not be granted. I think responsible judges could choose either option, but in this case both Judge Shelby and the appeals court seemed to give greater weight to the second. Instead of saying they chose the right or wrong option, maybe it would be better to say they chose the better or worse option.

In any event, I see their decisions as reasonable.

Madison, AL

The Windsor case originated from a plaintiff who lived in a state that recognized same sex marriage. So the question as to whether or not states have the authority to restrict marriage to opposite sex couples was never in play. It would have been improper for the Supreme Court to issue a ruling on that. It simply wasn't the issue in the case. The court did not establish conclusively that states do have the authority to restrict marriage to opposite sex couples. It also did not rule that the state do not have that authority. In short it is still an open question that the Supreme Court has yet to answer. Lower courts are still free to issue their own rulings as it stands today. Concluding that the Windsor decision is controlling precedent in regards to the states' power in regard to same sex marriage is flawed (on both sides).

Centerville, UT

At no point in history has a child been born without a father and a mother.

Science can muddy the issue with invitro, whatever. You must have the sperm from a man, and an egg from a woman to have a child. There is no other way. A father and a mother.

What is the purpose of marriage? If you exclude God from the marriage you can create any definition you want.

There are many purposes of family, and if you exclude God from the equation you can create anything you want.

But if you want to understand the intent and purposes of God, then the purpose of marriage is to begin a family within the laws of God. Most marriages then produce children, which is also ordained of God. I recognize that many marriages are unable to have children. But the desires of their heart are often to have children.

We are judged on the desires of our heart, as well as our words, thoughts and actions.

I don't speak or represent anyone other than myself.

Included in the counsels & teachings of God is the admonition to be merciful. The LGBT community has my sympathy.

Madison, AL

As for Perry, the Supreme Court was correct for not ruling due to no standing by the defendants. Allowing any outside organization to be party to a suit simply because they have strong feelings about an issue yet are otherwise unaffected would be a dangerous precedent. Not just in regards to same sex marriage but with *any* litigation. When the state dropped its defense we were left with a philosophical dispute between the parties, not a legal dispute.

Bountiful, UT

Richard Davis aptly points out that same sex marriage is coming. More & more states have recognized gay marriage, via legislative or judicial means.

Lost in the firestorm of Shelby's decision and subsequent marriages is another critical ruling on marriage, specifically a court striking down part of Utah's anti-polygamy law.

The doors are being opened toward expanded definitions of marriage, including same-sex couples, polygamy and perhaps even polyandry. There are instances of commune-type living arrangements where multiple men and women are committed to each other.

At some point the question needs to arise of whether government should be in the marriage business at all. Depending on how some of these cases are decided, single people could litigate the preferential treatment that married people have, especially as it relates to taxes.

Why should single people have to pay more in taxes than married people (even those marriages where no offspring is feasible, such as second marriages between elderly widows and widowers)?

If there is no immediate benefit to society - ie, no children being produced - is it justified to discriminate against single people in taxation?

Maybe government needs to get out of the marriage business altogether.


WHEN the Supreme Court upholds Judge Shelby's ruling, will Richard Davis write another D-News editorial admitting that HE was wrong?

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