Comments about ‘My view: Same-sex marriage will likely be reversed’

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Published: Friday, Jan. 3 2014 12:00 a.m. MST

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Salt Lake City, UT

"This policy judgment is not intended to denigrate gay couples"

Absolutely it is. You're taking an average (that isn't really established when it comes to same-sex couples) and stereotyping it onto all of them, ignoring the fact that even if the averages came out that way, some same-sex couples would do great and some opposite-sex couples would do terribly.

You would never ever apply these averages to other categories to ban from marriage. Race? Religion? State (say goodbye to marriage Mississippi)? Should we ban whichever ones score lower on average from marrying? It'd be absurd. We even allow single people to adopt in Utah, showing that this average argument isn't even used when it directly applies to a choice of placing a child.

Nope, this whole average thing is only ever used as an excuse to deny same-sex couples marriage rights, and that's all it is, an excuse, not a constitutionally sound reason, and that is why there is probably not going to be any reversal.

Gaithersburg, MD

Mr. Nelson - I have to disagree with you. Your arguments up front are reasonable if they at all applied but I do not see that they do. The issue really rests on the 14th Amendment. Your justification to exclude the 14th in this case being "straight homes are better for children," simply does not apply as there is no valid evidence of this and having or raising children is not a requirement for civil marriage in any jurisdiction of which I know. You do not exclude the elderly and infertile from the marriage contract.

As long as the civil marriage contract is offered to couples and denied to others based upon their sexual orientation, you have a violation of the 14th. I see nothing to contradict this nor any justification to stay the finding of Judge Shelby. The AG's claim of "an affront to Utah" and "irreparable harm" is really grabbing at straws. There is no evidence of either.

Wheeling, IL

From the landmark Supreme Court case, Loving v. Virginia, " The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

Kind of shoots down Merril's theory.

Springville, UT

Even commentators from the "left" have noted the very weak, if non-existent legal grounds this judge used to overturn Utah's law. The end does not justify the means. Ideally, individual states will make these decisions, not one grand Federal incorporation. Much as Nevada and New Jersey allow gambling, let various states decide and let people vote a second time with their feet. That is true Federalism, which I support.

Far East USA, SC

I cannot see what the big deal is.

Seems that the major sticking point is the term "marriage"

How about we completely do away with "marriage licenses" and let people get a "union license" which would be an official government recognition.

Let "marriage licenses" be issues by churches but have no legal standing.

I still cannot see how someone else's "marriage" affects me one way or another.

Here, UT

@Merrill Nelson;

It isn't about the state's right to "define" marriage, it is about the state's inequitable application of legal benefits to similarly situated couples by inequitable application of that definition. You can't just tell a subset of citizens they're "ineligible" for the benefits you give another subset, when in every other regard the subsets are identically situated. The rights of the individual may NOT be abrogated by the state without due process (majority vote is not due process). That is what the 14th Amendment says.

You are going to be sorely disappointed when the courts continue to rule against you.

"...it is merely a statement of preference intended to encourage traditional marriage."

Please explain how denying SSM accomplishes that? It does not.

clearfield, UT

I have a legal question. Just because a law against same sex marriage has been ruled as unconstitutional, does that "automatically" mean that the opposite becomes law? In other words, now that a law against something can't be done, doesn't the state legislature then need to vote to make the new standing an offical law? Seems to me that is the way it should be. You see, even though there was a law, passed by the people of Utah, California, and other states that outlaw same sex marriage, there has NEVER been a law enacted yet that says it is legal to have same sex marriage. Any more than there has been a law passed that allows people to marry their dogs. It would seem to me that the states should still be required to pass that law. Otherwise, since recent Utah rulings have taken away the polygamy law, one could now assume that the state should be required to issue multiple partner marriage licenses. Any lawyers out there? And stick to the SSM, not polygamy. I only use that as an example.

South Jordan, UT

You must be a really terrible appellate lawyer if you don't know that the SCOTUS has ruled time and time again in various cases over the last century that marriage IS in fact one of the "fundamental rights of man". You are simply wrong on so many levels.

Salt Lake City, Utah

So, for the sake of argument, let's say you are right about a child doing best in a home with a father and a mother. How does prohibiting same-sex marriage further that goal? What rational connection is there between prohibiting same-sex marriage and having children raised by two opposite sex parents?

Does prohibiting same-sex marriage reduce the chances of unwed pregnancy? Does prohibiting same-sex marriage mean single people are less likely to foster or adopt? Does prohibiting same-sex marriage mean gay people are going to give their own children to heterosexual couples to raise? Are gay people who are prohibited the opportunity to marry the one they love going to decide to marry straight and raise children with someone of the opposite sex? Would allowing same-sex marriage reduce marriage and child-rearing by heterosexual couples?

If you answered "yes" to any or all of these questions, what legally valid proof do you have to support that?

You can believe whatever you want, but as a lawyer you know there must be a rational connection between the law and its stated purpose - you can't just laws because you want to.

high school fan
Huntington, UT

This story was not about what is right or not, is it good or not, is it fair or not. This article is simply about who historically has the right to make this decision, the state or the national government.

Castle Valley, Utah

Dear Representative Nelson,

No proponent of same-sex marriage has "brushed aside" traditional values. You see, proponents only want to support the traditional institution of marriage by doing the ultimate - joining in whole heartedly. I cannot understand why anyone wouldn't feel good about that. No, opposition to same-sex marriage is not about protecting traditional values. It is deeply rooted in something else entirely.

Durham, NC

""deeply rooted in this nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist""

Pure silliness. The entire portfolio of civil rights cases have been won despite historical precedent.

Secondarily, the issue is yes, localities and states can create regulations around contractual relationships - but those laws must be consistent with constitutional rights which supersede any law a state passes - in that they can not arbitrarily carve out special classes of citizens and grant them rights or privileges that other classes of citizens can not enjoy. And this isn't just a matter of who lives together or not, but actually comes down to tax law and individuals tax contribution.... ones taxes is impacted by their legal status. Therefor their needs to be some justification for having laws that directly impact individuals creating multiple classes of citizens.

Again, I am not a defender of gay marriage, but I am a defender of equal treatment under the law. I don't have to like someones actions... but do have to protect their right to choose. Choosing is why we are here after all. Compelled choice is no choice what so ever.

Denver, CO

In the 1967 Loving v. Virginia case, the Supreme Court of the United States overturned Virginia's Racial Integrity Act of 1924, a law prohibiting interracial marriage, determining that an interracial couple had a "fundamental right" to marry. Loving v. Virginia is the likely precedent to be argued in Utah's Kitchen v. Herbert appeal. Rep. Nelson, you said "the basis for distinction is simply the policy judgment that children do better in homes with a mother and a father who bring their unique female and male traits, talents, insights and abilities to the role of parenting." Let's test this claim against the Loving v. Virginia case. In 1967, the majority of Virginians wholeheartedly embraced the superiority of same-race marriages. As in the Loving v. Virginia case, 'legislative policy judgment' was adjudicated legally insufficient to justify legislative prohibitions on interracial marriage. Rep. Nelson, as a state legislator and appellate lawyer you are familiar with Loving v. Virginia. Contrary to what you have stated, the Court has a duty to prevent state legislatures from imposing majority rule or "legislative policy judgments" contrary to "equal protection" guarantees.

Open Minded Mormon
Everett, 00

If "marriage" is about LOVE and commitment, what's the big deal?

I got married to the one I loved.
Someone I wanted to spend the rest of my life(s) with.

I did not get married for sex,
I did not get married just to have a bunch of kids.

The kids are now gone, and so is the other.
And my wife and are still in love, and still "married" for the very same reason where got married in the 1st place.
Love and commitment.

Those who keep equating marriage exclusively with sex, are the one who are perverting it.

Salt Lake City, Utah

@ happy2bhere: Currently there are no laws prohibiting anyone from driving red cars nor giving them specific permission to do so. Should a law be passed prohibiting red cars, and that law then struck down, there would not need to be a law passed allowing red cars.

If something cannot be done, you do not need a law prohibiting that activity - by passing a law prohibiting same-sex marriage, the tacit acknowledgement was made that without that law same-sex marriages could occur.

As for the recent polygamy ruling, you misunderstand what occurred. The Judge did not do away with bigamy (being legally married to two individuals), he simply ruled that cohabiting with someone while you are married to someone else is not in fact the same thing as being legally married to both those individuals and therefore not a crime.

Eugene, OR

Show me one heterosexual family that will forced to forced to split up once same-sex marriage becomes legal. Just one.

American Fork, UT

I think this entire process has to fall back on the national government, even down to the 'definition' of marriage, in order that any person who is married in one state may also be so in any other state. 50 different versions isn't going to work.

one vote
Salt Lake City, UT

This demonstrates that the Utah Legislature is planning something radical again at the next session. They may vote to secede to form a religion based country.

Wheeling, IL

I predict that the 10th will uphold Shelby's ruling and the supremes will NOT grant cert.

Tooele, UT

Re: "I think this entire process has to fall back on the national government, even down to the 'definition' of marriage . . . 50 different versions isn't going to work."

You can think that all you want, but the issue is not what you think, but what the Constitution requires. And, the Constitution reserves to the states the right to define marriage.

If you want to push your odd views on the rest of us, you're going to have to do so through the legislative process, not by co-opting one or another liberal, agenda-driven jurist.

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