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My view: Shelby's jurisprudence is lacking

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  • Furry1993 Ogden, UT
    Jan. 17, 2014 6:59 a.m.

    @Stephen Daedalus 11:37 a.m. Jan. 15, 2014

    Mark Butler inadvertently demonstrates the old law school adage:

    If you have the facts on your side, pound the facts.
    If you have the law on your side, pound the law.
    If you have neither the facts nor law on your side, pound the table.

    ---------------------\

    When I was in law school we had another form of that adage -- both are very accurate:

    If you have the facts on your side, argue the facts.
    If you have the law on your side, argue the law.
    If you have neither the facts nor the law on your side, insult the other side.

    There are several people here who try (wrongly) to argue the Constitution and when I challenge their inaccuracies they try to insult me. When I provide my credentials -- I graduted cum laude from law school and have been a lawyer for over 26 years -- and ask them to provide their credentials, I get ignored and/or they tr4y again to insult me. I guess that shows the (lack of) strength in their positions AND the fact that they realiZe their lack.

  • DavidNL Holladay, UT
    Jan. 16, 2014 10:57 p.m.

    @ procuradorfiscal

    In all due respect, if all you can see is "an activist judge" and a "copy cat" judge rolling out their liberal agendas, you've probably missed the truly remarkable legal "concepts" that the Supreme Court, via its interpretation and advancement of the Constitution, has established and supported over its 225 year history, including those established during the 146 years since the 14th Amendment was ratified.

  • DavidNL Holladay, UT
    Jan. 16, 2014 5:38 p.m.

    Butler's comments are nicely crafted and written, mechanical, and typically conservative - arch conservative. And utterly lacking in empathy. Butler, a constitutional scholar must also realize that Judge Shelby's legal arguments were in line with a long tradition of arguments made by judges (and justices) who got out of the ivory tower of the law long enough to remember that laws actually relate to human beings -- citizens, community members. Of course, the state did itself no favors by rolling out a bunch of tired arguments, all of which have already failed in court. Speaking of malfeasance and "lacking jurisprudence", it must be said that the state was utterly lacking in its case, arguments and procedure, distracted by the malfeasance -- indeed criminal investigation -- of its highest legal authority. Talk about "lacking..." !

  • Bob K portland, OR
    Jan. 16, 2014 4:09 p.m.

    Does anyone else feel that the endless stream of pieces criticizing this REPUBLICAN judge, who happens to be from a bit younger generation, are all about the DN trying to cater to the established, conservative mormon point of view?

    The DN belongs to a great church (albeit one with which I do not agree) with Jesus Christ in its name.

    As a somewhat different type of Christian, I do not see why the DN does not use this opportunity to help its readers truly understand both sides. I think Jesus wants that.

  • Bob K portland, OR
    Jan. 16, 2014 4:02 p.m.

    Cats
    Somewhere in Time, UT
    "Well, I see the regularly assigned prop-gay posters are the first on board as usual.
    All one has to do is check out what has happened in Massachusetts to learn about the damage gay so-called "marriage" has done in that state. It has effected schools, churches, business, employment and freedom of speech in wholly negative ways. I encourage everyone to take the time to find out what has happened there."

    --- Could you PLEASE stop posting these blatant lies every time the subject comes up?

    No one is assigning posters here: but your idea must come from the recent past, when articles on Huffington Post, for instance, about the subject were apparently trolled by young mormons assigned to stick in their points of view, over and over. (from my personal observation).

    In Massachusetts:
    A-- From my understanding, TWO couples moved there to start trouble and did so.
    B-- Since marriage equality, the MA divorce rate is among the very lowest, way, way lower than Utah's.
    C-- If it is a liberal area, and the parents are fine with teaching kids certain things, is that not their right?

  • Esquire Springville, UT
    Jan. 16, 2014 9:58 a.m.

    @ P38, on the issue of the stay, Judge Shelby 1. was not asked to stay the decision by the State of Utah, and 2. unlike the OK judge, he did not have the benefit of instructions from the U.S. Supreme Court that the matter should be stayed until the 10th Circuit Court could hear the case. There was no judicial immaturity. So please, rather than personal attacks on the judge, focus on the issues.

  • Mainly Me Werribee, 00
    Jan. 15, 2014 10:07 p.m.

    So is his common sense.

  • P38 Orem, UT
    Jan. 15, 2014 6:53 p.m.

    RE: Steve C. Warren: “In making the above statements against Judge Shelby, Mark Butler's timing couldn't be worse. That's because . . . .”

    Not so. The actions of Judge Terrence Kern only confirm the point made.

    A senior district judge with nearly 20 years on the federal bench—which arguably is precisely why he issued an immediate stay pending review. This is jurisprudence. Something Shelby declined to demonstrate. That is the judicial immaturity referred to.

  • Schnee Salt Lake City, UT
    Jan. 15, 2014 6:48 p.m.

    @procuradorfiscal
    "Only to the extent the issue is 14th-Amendment racial equality. "

    The difference between you and me is that you believe that the 14th Amendment only deals with racial equality and I believe it's broader in scope. The relevant section is section 1 and there is nothing in that text...

    Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    ...that is race specific so I don't see why it would necessarily only apply to the matter of interracial marriage.

  • Really??? Kearns, UT
    Jan. 15, 2014 6:02 p.m.

    "How will your side show tolerance towards those who favor traditional marriage as the gold standard for society?"

    I think it's simple. We will continue to celebrate our parents', siblings', and friends' wedding anniversaries. We will continue to attend the weddings that we are invited to attend. We will support our neighbors any way we can. Most importantly, we will not decide to vote away your rights to get married.

  • procuradorfiscal Tooele, UT
    Jan. 15, 2014 5:40 p.m.

    Re: "Loving v Virginia is a precedent for federal judicial intervention in state marriage laws."

    Only to the extent the issue is 14th-Amendment racial equality. Which was decidedly NOT the issue before Shelby.

    The 14th Amendment was never intended to permit unelected activist federal judges to write their minoritarian liberal agendas into state law. Notwithstanding, Shelby and the copycat Oklahoma federal "judge," elected to do what they were appointed to do -- reliably advance a liberal political agenda. They chose to disingenuously play "gotcha" with the American tradition of the rule of law, not men.

    The 14th Amendment didn't confer on women or 18-year-olds a right to vote. It didn't invalidate sovereign immunity. It didn't prohibit penal servitude. It doesn't confer a right to drink on 17-year-olds. It didn't invalidate differential taxation of American incomes. It didn't even prohibit the denial of voting rights for inability to pay a poll tax.

    No trained jurist can, then, honestly suggest that the 14th Amendment carves out some special status for the LGBT political agenda, in violation of all pertinent Supreme Court precedent.

  • NevadaCougar Panaca, NV
    Jan. 15, 2014 5:34 p.m.

    Despite your views on the matter, this opinion piece is correct. Judge Shelby recognized a "civil right" when none had been granted or recognized before. Equating homosexuality to race fails for several reasons. The equal protection clause and substantive due process recognized for the last century were specifically written for race protection. At that time homosexuality was a criminal offense. To say that their intent was to also protect homosexuals is patently wrong. Also, Courts don't have a right to ignore the amendment process in the Constitution and "update" the Constitution through case law. Admittedly, many legal scholars adhere to this belief. I do not. In the end, the SC may adhere to this theory and "update" the Constitution with a new right that was never intentionally written into the Constitution, but it still violates the amendment procedure and the democratic process in my opinion. It would also set a dangerous precedence, because how many minority groups would seek similar protection? Would LDS members get class recognition as a protected minority? How about when we have no majority, just a plurality. Does everyone get protected status? It would all be up to the whims of the judiciary.

  • apm22 sparks, NV
    Jan. 15, 2014 5:00 p.m.

    I still have not heard a valid legal argument for gay marriage. My understanding is that gay marriage proponents seek equality under the 14th amendment. Where under that amendment or any other amendment or provision of the constitution does it say that marriage between a man/man or a woman/woman relationship is a right that every state must respect? Just because you love each other does not make it a marriage relationship that the constitution requires every state to respect.

  • Henry Drummond San Jose, CA
    Jan. 15, 2014 3:49 p.m.

    A federal court today struck down Oklahoma's ban on same sex marriage. Since the Judge Terence C. Kern addresses the very complaints of the author of this article, I thought you would find the following of interest:

    "The Supreme Court has not expressly reached the issue of whether state laws prohibiting
    same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states
    from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one."

    "Equal protection is at the very heart of our legal system and central to our consent to be
    governed. It is not a scarce commodity to be meted out begrudgingly or in short portions.
    Therefore, the majority view in Oklahoma must give way to individual constitutional rights."

  • nonceleb Salt Lake City, UT
    Jan. 15, 2014 2:41 p.m.

    I am impressed with the vocabulary skills of Mark. But words need to be used in a way to make sense. William F. Buckley had this debating skill. He would use such esoteric, obscure, complex words that his opponent had no idea what he was saying and could not rebut his argument. In all of Mark's loguaciousness, he did not present a really valid constitutional argument to counter the 9th and 14th Amendments or prove the claim by proponents in the case that marriage equality harms traditional marriage. What will Mark say when higher courts validate Shelby's decision?

  • Blue Salt Lake City, UT
    Jan. 15, 2014 2:13 p.m.

    "If you don't view the actions that naturally accompany an intimate relationship such as marriage as inconsequential to God's plan, or to the virtues that make for a stable society, then there is absolutely nothing I could do or say to persuade you otherwise."

    And conversely, if you don't grasp that your personal interpretation of "God's plan" is necessarily irrelevant to the point of law being judged (equal protection), and that it is the _separation_ of religious doctrine from our government that makes it possible for Mormons to be U.S. citizens along with of Jews, Muslims, Catholics, Baptists, Hindus and Pastafarians, then there is absolutely nothing I could do or say to persuade you otherwise.

    Which is really unfortunate.

  • E Sam Provo, UT
    Jan. 15, 2014 12:46 p.m.

    Of all the many op-ed pieces the DN has published on this topic, this one is easily the silliest. Do you really suppose that Judge Shelby just woke up one morning and said to himself" "I think I'll legalize gay marriage today." No. He had to decide the case before him. He had to base his decision on the evidence and arguments presented. Read the briefs and oral arguments from both sides, and it's difficult to see how else he could have ruled.

  • cavetroll SANDY, UT
    Jan. 15, 2014 12:26 p.m.

    Re higv:
    "When has the right to marry someone of the same gender been a right. Marriage always has been between a man and women and government officials do not have a right to redefine it."

    First off, I really enjoy the polygamy reference there. Second, when has the right to marry anybody been a right? Third, your religion, or any religion for that matter does not have a right to define marriage for everybody else. Especially those who don't share your religion or mine.

    Re: Sal
    "we are willing to give gays stable loving relationships through civil unions.How will your side show tolerance towards those who favor traditional marriage as the gold standard for society?" Gee, I'm sure the "gays" are so happy you are willing to give them something. Except that civil unions were never on the table. Can't have that here in Utah. To use your side's oft stated argument, you can still get married to somebody of the opposite sex. Allowing the gays to marry won't change that.

  • EJM Herriman, UT
    Jan. 15, 2014 12:10 p.m.

    The State of Utah has only itself to blame for not requesting a stay in the original presentation of the case. And for those who want to complain about Judge Shelby seriously.....he knew, the plaintiffs knew, the defense knew.....there would be an appeal up the chain to higher courts, including the SCOTUS. For those calling him arrogant I would say that you really have no idea how the process works, or the history in our country's legal system of the idea of judicial review. Jeepers.

  • Stephen Daedalus Arvada, CO
    Jan. 15, 2014 11:37 a.m.

    Mark Butler inadvertently demonstrates the old law school adage:

    If you have the facts on your side, pound the facts.
    If you have the law on your side, pound the law.
    If you have neither the facts nor law on your side, pound the table.

  • isrred South Jordan, UT
    Jan. 15, 2014 11:36 a.m.

    "I think the Judge in the Arkansas case was wise. I think the Judge in the Utah case was full of pride and his perception of his power."

    It was the state of Utah that was full of pride. They were so overconfident in their case that they didn't REQUEST a stay in the chance that they lost. They didn't request a stay until AFTER the ruling. But what do you expect when you elect political hacks as Attorney General because they have the magic R next to their name

  • bandersen Saint George, UT
    Jan. 15, 2014 11:19 a.m.

    Furry: Your so-called understanding of the Constitution is convoluted. The constitution was written as it was for a lot of reasons, one being that it was simple to understand. It takes a century of lawyers and judges getting into the mix to make it into something only recognizable to those who think that it can mean anything you want it to mean, regardless of the words. I sometimes ask my children what part of "no" don't they understand and it appears that many who are conflicted about the Constitution's meaning need the same question asked "What is it that you don't understand about the Constitution?" If you aren't looking 'beyond the mark' it really is simple. Hopefully, the will of the people of the state of Utah will be upheld in their constitutional right to define marriage.

    Liberal Larry: If you don't view the actions that naturally accompany an intimate relationship such as marriage as inconsequential to God's plan, or to the virtues that make for a stable society, then there is absolutely nothing I could do or say to persuade you otherwise.

  • 2 bits Cottonwood Heights, UT
    Jan. 15, 2014 10:56 a.m.

    At least the judge who made the similar decision in Arkansas had the foresight to know that his decision was going to be controversial and almost certainly challenged, and didn't pretend that HIS decision was final and no stay or appeal would be accepted, causing the rush the the alters in Utah.

    He knew the decision would be appealed, so he issued his decision AND a stay until it could be appealed and a higher court agree or disagree with his individual decision.

    I think the Judge in the Arkansas case was wise. I think the Judge in the Utah case was full of pride and his perception of his power.

    I think the Judge who overruled the Utah Judge allowing the stay that eventually was granted had more wisdom than the Judge who refused it while his decision was on appeal.

    IMO the US Supreme Court needs to decide this once and for all. Until then... State decisions should be stayed awaiting the Supreme Court decision.

  • Steve C. Warren WEST VALLEY CITY, UT
    Jan. 15, 2014 10:03 a.m.

    Re: "comparatively novice judge" "adolescent judicial immaturity"

    In making the above statements against Judge Shelby, Mark Butler's timing couldn't be worse. That's because in today's paper we also read that in Oklahoma, Judge Terrence Kern ruled against that state's ban on same-sex marriage and, in doing so, cited Shelby's ruling. Please note that Kern is a "senior" district judge who has nearly 20 years on the federal bench and who was chief judge for seven years before assuming senior status.

  • Hutterite American Fork, UT
    Jan. 15, 2014 9:51 a.m.

    I don't know much about the process of law, but I do know this: If this same process had led to a decision against same sex marriage, this editorial would not have been written. Secondly, the decision as it turned out was a great thing for Utah and ultimately the nation.

  • PolishBear Charleston, WV
    Jan. 15, 2014 9:26 a.m.

    DEAR HIGV:

    Is there a “right” for anyone to get married? Not in the Constitution. The word “marriage” does not occur in the Constitution. However, the federal government has complicated things somewhat. According to Government Accountability Office, there are at last count over 1,100 separate laws, benefits, protections, and opportunities that are bestowed by the federal government on married couples. So unless the Constitution only applies to people who are Straight (i.e. heterosexual), the 14th Amendment guarantee of equal protection under the law demands that law-abiding, taxpaying Gay couples have the same opportunities that Straight couples have always taken for granted.

    But if it will make you feel any better, marriage equality for Gay couples will have precisely ZERO impact on Straight couples. For people who are Straight absolutely NOTHING is changing or being “redefined.” Straight people will continue to date, get engaged, marry, and build lives and families together as they always have. None of that will change when Gay couples tie the knot also.

  • Mike Richards South Jordan, Utah
    Jan. 15, 2014 9:03 a.m.

    When the rich have so much money, why would anyone think that stealing just a handful would hurt society? So says every bank robber. Some would agree. They would see the bank robber's "needs" and justify him for taking something from someone else. Others would clearly see that if everyone were allowed to decide for himself what is "free for the taking", that society would unravel.

    Judge Shelby told us that he is the law of the land. That he would decide for the citizens of Utah what their Constitution allows and what it restricts. He decided for himself that the recent ruling from the Supreme Court, that States had the right to implement marriage as their chose, was wrong, and the a dissenting opinion on that ruling was right. Judge Shelby acts much like that bank robber who justifies robbing a bank because he intends to do some good with the money. The 14th Amendment clearly states, "nor deny to any person within its jurisdiction the equal protection of the laws". The law states that marriage is between a man and a woman. It is equally enforced in Utah.

  • Cincinnatus Kearns, UT
    Jan. 15, 2014 8:49 a.m.

    This was an argument that could have been made far fewer words.

    It seems this was written more to impress a college professor than make a coherent argument to the public. Pulling out a thesaurus and using multiple meanings and big words doesn't make an argument any more valid.

    Simply said, "the judge was wrong because he didn't follow years of legal precedent and logic."

    Unconvincing, in long or short form.

  • Ernest T. Bass Bountiful, UT
    Jan. 15, 2014 8:25 a.m.

    Those opposed still haven't filed a valid legal reason why two adults, being minorities, cannot marry when the majority can.

  • EDM Castle Valley, Utah
    Jan. 15, 2014 8:25 a.m.

    I am a graduate of the University of Utah, where I studied Political Science.

    My view: Shelby's jurisprudence is amazing!

  • Sal Provo, UT
    Jan. 15, 2014 8:14 a.m.

    Now give us another article Mark on how to remove rogue judges.

    liberal larry: we are willing to give gays stable loving relationships through civil unions. How will your side show tolerance towards those who favor traditional marriage as the gold standard for society? Is tolerance a one-way street in your world?

  • Blue Salt Lake City, UT
    Jan. 15, 2014 8:13 a.m.

    It would be helpful if the people expressing their disagreement with Judge Shelby's decision would show some evidence that they actually grasp the key elements of his decision, and acknowledge the legal significance of established precedent and the application of the 14th Amendment in civil rights cases.

    Judge Shelby is not the first federal judge to make a sober assessment of state laws that discriminate against gays and find them to be unconstitutional, and, as we've just seen in Oklahoma, it won't be the last.

    Shelby's decision will stand. Utah's Amendment 3 will not.

  • Esquire Springville, UT
    Jan. 15, 2014 8:10 a.m.

    This political science graduate is stating nothing more than opinion. His views don't have much support in the 200+ years of American judicial tradition.

  • Cats Somewhere in Time, UT
    Jan. 15, 2014 7:37 a.m.

    Well, I see the regularly assigned prop-gay posters are the first on board as usual.

    All one has to do is check out what has happened in Massachusetts to learn about the damage gay so-called "marriage" has done in that state. It has effected schools, churches, business, employment and freedom of speech in wholly negative ways. I encourage everyone to take the time to find out what has happened there.

  • higv Dietrich, ID
    Jan. 15, 2014 7:33 a.m.

    @furry1993 When has the right to marry someone of the same gender been a right. Why are people just now "finding that right" in the constitution? Marriage always has been between a man and women and government officials do not have a right to redefine it.

  • Ranch Here, UT
    Jan. 15, 2014 7:26 a.m.

    States are allowed to regulate marriage and determine what benefits and such apply, they're STILL BOUND by the 14th Amendment to apply those regulates EQUALLY to ALL US Citizens.

  • micawber Centerville, UT
    Jan. 15, 2014 7:18 a.m.

    "Adolescent judicial immaturity", "insubordinate chutzpah", "brazen disregard", "judicial malfeasance."

    It's good to see the Deseret News and the author are committed to civility.

  • UTAH Bill Salt Lake City, UT
    Jan. 15, 2014 6:46 a.m.

    Yeah, we know... another judge, another "rogue" decision. We hear this tired response every time a judge makes a decision Conservatives in Utah don't like.

  • liberal larry salt lake City, utah
    Jan. 15, 2014 6:26 a.m.

    Its informative to hear scholars speak in legalese about Utah's opposition to gay marriage, but I think many of us would like someone to explain, in plain language, how gay unions will hurt society.

    Whatever you think about gay people, wouldn't the conservative position be to give them the benefits of stable, loving relationships?

  • Furry1993 Ogden, UT
    Jan. 15, 2014 4:41 a.m.

    Judge Shelby's decision in KITCHEN v HERBERT was soundly based on long-standing law and precedent. It accurately stated the law and accurately construed and applied the US Constitution. If Butler truly believes the things he says in this article, he has a lot to learn.

  • Schnee Salt Lake City, UT
    Jan. 15, 2014 12:03 a.m.

    Loving v Virginia is a precedent for federal judicial intervention in state marriage laws.