Published: Friday, Jan. 3 2014 12:00 a.m. MST
"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.
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
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.
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.
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
@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.
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
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.
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.
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.
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.
""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.
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
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.
@ 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.
Show me one heterosexual family that will forced to forced to split up once
same-sex marriage becomes legal. Just one.
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.
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.
I predict that the 10th will uphold Shelby's ruling and the supremes will
NOT grant cert.
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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