The ruling will be very predictable, Judge Shelby’s decision will be
upheld and marriage equality will prevail.Utah AG hired expensive
outside lawyers and all they can do is just beating the dead horse.Taxpayers' money should have been better spent.
For those who claim this is state right issue. I think each state should have
their own decision on technical issues like whether the legal age should be 18,
like most states, or 19, like Nebraska, or 21, like Mississippi; or, with
parental approval, whether it should be 16 for both genders or 16 for girls and
17 for boys etc. However, for fundamental issues, like whether a
couple of different races can get married, whether a couple of same gender can
get married, the federal judiciary system should have a say. It should not be
like in the past, interracial couples can get married in one state but not in
I'm reading it went very well for Marriage Equality advocates, but it
doesn't sound like a unanimous ruling is likely, based on the questioning
and responses from the judge.Of course, that's speculation and
I look forward to reading further reporting.
New Mexico was able to see the inevitable.
If you would like to hear the audio of today's arguments they are on the
tenth circuit court's site. You might just put "tenth circuit court of
appeals kitchen v herbert audio" into your search engine and you should find
If the pro same-sex marriage advocates are so sure they are going to win, I
wonder why they are starting an ad campaign to try to win over hearts and minds
in the state. If all they need is a court ruling and it is so inevitable, why
do they need to do all this campaigning to get votes in favor of same-sex
marriage? Gosh, maybe they're not quite so confident as they claim.We can pass all the laws we want and have all the court rulings we want
and it will NEVER change truth or right.
@Cats"If the pro same-sex marriage advocates are so sure they
are going to win, I wonder why they are starting an ad campaign to try to win
over hearts and minds in the state."Probably the same reason why
political parties and even the Mormon church buys ads in the media. To get their
Religion should stay the heck out of law.
@USU-Logan - not so, even if it was amended that only those 99 or older qualify.
Marriage is not a right, and it is available to all. A very small
minority want to re-define marriage and seek it to be classified as a
right....Rights are God-given and recognized by the Constitution as such. God
does not define marriage in any way except between man-woman. Truth will prevail
in the end.
It's like watching the Pharisees spar with the Romans.The Law
of Moses vs. the Law of the Land.Speaking of which -- after
all is said and done, I wonder if Utah Mormons will still believe -- 11. We claim the privilege of worshiping Almighty God according to the
dictates of our own conscience, and allow all men the same privilege, let them
worship how, where, or what they may.12. We believe in being subject
to kings, presidents, rulers, and magistrates, in obeying, honoring, and
sustaining the law.Because with all the saber rattling going on, it
doesn't sound like it.
Here in Utah, the elephant in the room bigger than gay marriage is that of
polygamy. As correctly stated by the attorneys representing Utah, once you open
the door to same-sex marriage, requiring the recognition of polygamous marriages
is the logical next step.As is often the case with well-intended bus
misguided law-making, this decision is going to lead to places that the judges
never envisioned or intended.
@Cats: "If the pro same-sex marriage advocates are so sure they are going to
win, I wonder why they are starting an ad campaign to try to win over hearts and
minds in the state."As Mormons have become more visible in jobs
and schools and neighborhoods, as well as in entertainment, people across the
country and around the world have seen that Mormons are normal people. The ads
the Church ran over the years helped get that idea out there. So I
think they are doing these commercials to help those who have been against
same-sex-marriage. Harvey Milk famously said that gays and lesbians coming out
to friends and family changes minds and hearts - we become real people as we
come out and make connections. These ads will help people who
listened to "the sky is falling" claims will see that maybe they
disagree, but they can be friends and neighbors. I think the ads
will help ease the changes when gay marriage is legalized, and I think it is a
good and compassionate thing to do.
Rufio said, "Marriage is not a right"Incorrect.
"Marriage is one of the "basic civil rights of man," fundamental to
our very existence and survival."-- Chief Justice Warren writing for the
majority in 388 U.S. 1, Loving v.Virginia (No. 395), June 12, 1967 Rufio
said, "and it is available to all."Seriously incorrect.
"Marriage consists only of the legal union between a man and a
woman."--Article 1, Section 29, Utah Constitution.Rufio said,
"God does not define marriage...""I distrust those
people who know so well what God wants them to do, because I notice it always
coincides with their own desires."--Susan B.Anthoney.
In the end in our country named America equality is always the winner. Mormon
friends there is nothing to fear but fear itself!
My_two_Cents_Worth: You have entered my absolute favorite quote. I applaud
you. Susan B. Anthony truly knew what she was talking about.What we need
to remember is that we are judging based on Gods will as interepreted by man.
The original bible was re-written from ancient latin texts that priests were not
always positive of. Taht is why there has always been discussion and amendments
to the stories throughout the years.
Utahs only hope is that these judges will do what Supreme Court Chief Justince
John Roberts did for the Obamacare ruling. Rule in favor of the state by
telling them under what circumstances their marriage law would be
constitutional. Over Obamcare it was if they looked at the fine as a tax, which
the goverment specifically said it was not. I still think the CA
Prop 8 is the best case to show that States can define what marriage will be in
their state. There, gay civil unions had every benefit that hetero sexual
married couples did. It was only the term "marriage" that was being
fought over. Utah doesnt have that. I hope the court would give
some feedback to the State regarding this issue. Maybe they can call Justice
Roberts for some advice.
Changes in the civil law do not, indeed cannot, change the moral law that God
“This is not an easy thing to do when you know that people that you care
about on both sides of the issue will be affected very significantly and very
personally.” ~ Utah Attorney General Sean ReyesAnd therein is
the big lie of this debate. The truth is that the only people who will be
affected by the ultimate ruling in this case are the families of the LGBT
community. "Traditional" marriages will NOT be affected in any way.I have been married to my sweetheart for 30 years. During that time 18
countries, 18 states, and 8 Native American Tribes have passed marriage
equality. Thousands upon thousands of LGBT couples have married -- including
some 1300 here in Utah. And all those marriages have affected, influenced, or
changed my "traditional" family in absolutely no way whatsoever.The only "right" of traditional marriage that is under threat is
the right to have something while denying it to your neighbor. And that has
never been what "religious freedom" has meant to me.
Re: "Religion should stay the heck out of law."And, law
should stay the heck out of religion.
@Rufio and anyone else who thinks marriage is not a right:The
Supreme Court of the United States has held that marriage is a fundamental civil
right through a line of over a dozen cases dating back to the 1880s. It is not
an open legal question. Marriage is a civil right and that is settled law.
Period. Example from the case of Loving v. Virginia (1967): "Marriage is
one of the basic civil rights of man." You can like it, or you
can not like it. You can even argue that you think the state has some legitimate
basis upon which to deny the civil right of marriage to same-sex couples, but
you cannot claim that marriage itself is not a civil right. When talking about
marriage, same-sex or otherwise, we are talking about a civil right.
Love always prevails and hate always fails. Your beliefs do not influence the
realness of another person's life and their ability to love another human
being. I'm a Mormon millennial, and I support marriage for ALL.
YouAreKiddingThe church still believes in polygamy, I do not
understand why Utah members freak out about it. Men can be sealed to more than
one woman in LDS temples. Plural marriage is a doctrine of the church, its not
something to be scared of.
Overturning the Utah constitutional amendment on marriage is rather interesting
when one considers the history of legal marriage contracts. In the
seminal work titled Jewish Bioethics, the authors point out that the only other
time in the history of the world when marriage between two men or between two
women was codified into law was during the days of Noah, well over three
thousand years ago (see Dr. Fred Rosner and Rabbi David Bleich, Ktav Publishing
House, Israel, December 1999, page 219). Though the practice of
sexual relations between same sex partners has occurred during others periods in
recorded history, our day and Noah's day are the only two times when those
practices were codified by the ruling authorities as the law of the land.How will our ruling authorities decide this case? Will they side with
the lawyers and judges of Noah's day or will they take another course?
@Lia "Religion should stay the heck out of law."Are you
saying that we should declare the murder and theft laws invalid since they
originated with some religious belief - or are connected to some religious
belief?To say that belief - religious or otherwise - should have no
place in the law is to say that there should be no law.@Inis Magrath
"marriage is a right." What about Reynolds v. U.S.? Was it
a "right" there?
"The Supreme Court of the United States has held that marriage is a
fundamental civil right through a line of over a dozen cases dating back to the
1880s. It is not an open legal question." Marriage is a right.
But what is marriage? Whatever we say it is? Do we have a civil right to
whatever we want? Removing the gender requirement pushes back the
boundary between marriage and non-marriage, but there are still others who will
want in. If marriage is just about love, then on what grounds do we deny them?
Can three women get married? Why not? Because marriage has
"traditionally" always been between two people? Can a man marry his
brother? Why not? Because marriage has "traditionally" been forbidden
between close family members? To avoid birth defects? These guys won't have
that problem. The restrictions make sense from the point of view of
the child. The laws guide men and women into an institution such that if as the
result of their love for each other a child happens appear, she is born into a
pre-existing stable relationship where she can know and be raised by her own
mother and father.
@Mikhail wrote: "To say that belief - religious or otherwise - should have
no place in the law is to say that there should be no law."On
the contrary. The strongest basis for law has nothing to do with belief:Reason.
....if Loving is to be the litmus test, why wasn't same sex marriage
codified 30 years ago? Oh, that's right, because back then we didn't
see sexual preference as immutable as race. Be honest, same sex marriage
advocates, we are not defining rights here, we are re-defining marriage. We are
granting tacit approval to an unhealthy lifestyle choice. Period.
@my_two_cents_worth and @Inis MagrathThank you for your compelling
comments.@Mikhail"Are you saying that we should declare
the murder and theft laws invalid since they originated with some religious
belief - or are connected to some religious belief?"Whether you
are religious or not, murder and theft harm innocent victims, you don't
need to be religious to be against murder and theft. But even today, SSM
opponents still can not convince the court what the harm of same sex marriage
is. that is why they keep losing.
“There is no question that the children of SS couples would likely be
better off if their parents are guardians were allowed to marry.” -Gene
T-minus until reality sets in! Now let the "activist judges" excuses
begin. Possibly this could be an example to all of those that continue to use
hate and bigotry against ANY certain sect, sex or group. It's 2014. As
Dylan wrote..."Times, they are a changin".
So to play devil's advocate against LGBT couples wanting the State and US
Government to change the definition of marriage -1- This country and the
Constitution are inseparably connected to Judeo-Christian values. To separate
the two will require a re-writing of the Constitution. You cannot pick and
choose which tried-and-tested religious and government laws will or will not
work together. It's a package deal folks. To dismantle the constitution
will result in loss of true freedom. We'll end up with quasi-freedom, which
is what Europe has.2- If we redefine marriage to same sexes, then
logically we have to open the Pandora's box to polygamy, father-son,
mother-daughter, son-son, monogamy, and any other sexual coupling of human
beings that is imaginable. Do we really want to go there?3- What's
wrong with creating a new class of marriage contract called NON-TRADITIONAL, and
granting the same governmental rights of property ownership, taxes, etc. to
those people. When it comes down to it, I really don't think gays want to
change traditional marriage, they just want the financial benefits and equal
treatment under the government.
Marriage is a fundamental, individual, unalienable right. Statutory marriage,
however, is clearly NOT a right, but a privilege. That is what is so hilarious
about all this. People are demanding a government privilege BY RIGHT. The
exercise of a right does NOT entail having to obtain government permission (a
license) to do so. I have a friend who has married several gay people, in a
state where they are unable to get married statutorily.
While I have never argued that marriage was or wasn't a civil right, I have
argued, and will continue to argue that no individual has a civil right to
redefine marriage. There is the rub. As soon as marriage is redefined as a
union with the usual benefits of any two or more people who have some kind of
nebulous affinity between or among them, you will see sibling marriages, plural
marriages, parent-child marriages, business-partner marriages, and (fill in
whatever your imagination can conceive). Don't tell me that the sacred
institution will not be weakened. I'm a little tired of all you
traditional marriage participants declaring that these new definitions have not
and will not affect your marriage. These expanded definitions will affect your
Isn't it quite interesting how one that offers support and equality for all
is constantly denied the ability to comment?Seems to me there are numerous posts
commenting on this article along with many others that can be deemed
"abusive in nature". Like it not change is on it's way and we all
owe the great forward thinking state of Utah a tremendous "thank you"!
@markDefine quasi-freedom, you do know that Europe is not a country
right?Also if you are LDS please tell me why you have a problem with
None of the arguments against gay marriage are persuasive to me:1. If you
allow gay marriage, people will soon be marrying their cat. Ridiculous.
Cat's can't contract. 2. If you allow gay marriage, my
religious freedom is taken away. Ridiculous. Your freedom to what? Be free of
hearing about gay marriages?3. Gay marriages will ruin traditional
marriage. How? Are kids going to suddenly decide they want to have a gay
marriage because they are available even though they are heterosexual? Are you
kidding? Who would do that?4. Gay marriage makes God mad. Perhaps. But
a lot of things we do make God mad and we don't make laws prohibiting them.
My philosophy: I will live my religion and worry about how happy God is with
ME. 5. Gay marriage hurts kids. There is no reliable evidence that this
is so. It may seem counterintuitive to people who are repulsed by
homosexuality, but it's just not shown by research.Am I missing some?
Ultimately, when its all said and done, it will be quite telling to see the
decision and how the side that is "decided against" acts, and reacts, to
the decision. Based on the tone of the participants, I have my guesses.
To: YouAreKidding You wrote: "As is often the case with
well-intended but misguided law-making, this decision is going to lead to places
that the judges never envisioned or intended."Consider this: A
father marrying his son. A mother marrying her daughter. A sibling marrying a
sibling. A woman married to multiple men. A man married to multiple woman.
..... After all, "We love each other and we're responsible adults!
Who are we hurting, anyway?" That's the argument the marriage equality
advocates make. Its repugnant, isn't it? In Great Britain
last month a woman married her dog.
@Wonder and many others in this discussion board....I know that none
of the arguments have persuaded you, but help me understand one thing. You said
that gay marriage does not hurt children, right? Physically, you are right.
Emotionally, i don't know if there is enough evidence yet to know all the
effects of this. But when it comes to the creation of children...it hurts. It
is impossible for two males to conceive a child by themselves. It is impossible
for two females to conceive a child by themselves. Does this hurt society and
@Coach Biff"We are granting tacit approval to an unhealthy lifestyle
choice."There's nothing inherently unhealthy about having
same-sex attractions.@markmongie"1- This country and the
Constitution are inseparably connected to Judeo-Christian values. To separate
the two will require a re-writing of the Constitution. "That's false. "2- If we redefine marriage to same sexes,
then logically we have to open the Pandora's box to "That's a slippery slope logical fallacy. Think about it this way, just
because the LDS church practiced polygamy doesn't mean they did all those
other things at the time and just because some out east marry their cousins
doesn't make all those other things come to pass. "3-
What's wrong with creating a new class of marriage contract called
NON-TRADITIONAL"Separate but equal is inherently unequal."I really don't think gays want to change traditional
marriage,"Depends. If you mean not altering anything about
opposite gender marriage, yeah they don't want to change anything. If you
mean they just want benefits and don't care about the ceremonies/etc,
absolutely they want to change that. Many churches marry same-sex couples now.
Re: Asked if he agreed with the state's voter-approved Amendment 3, Reyes
declined to state a position.Wow! That's an eye-opener. Good
@Open Minded MormonI am not sure what side you are on but clearly it
is not the side of your mormon leaders.This case is helping to
decide what the law is that we should sustain.More importantly, In
this constitutional based country, it is we the people that decide what the
law is using the means and methods established by the constitution. We are only
subject to the law that we the people create, or the amendments we the people
establish.And the 14th amendment does not apply here, because it
must be established that homosexuals are born that way.Science has
not found any DNA markers or code or gene that determine homosexuality.It is not the same as race or gender, and any such comparison is
ridiculous.Any reasonable judgment, and not ideological based
reasoning, should side with the state.
This is the beginning of the end for religious freedom and laws of morality.I am sure that the Almighty is not well pleased with the violation of his
eternal precepts and we will be judged as a country as we accommodate the needs
of the vocal few.
In response to not-a-y-fan, I continue my list of arguments:6. Gay
marriage hurts society because gays can't have kids (Have I summarized it
ok, not-a-y-fan?) -- Not persuasive to me because lots of marriages don't
produce children and we don't ban them. True, if every marriage was gay we
would have fewer children (assuming only married people have children), but
that's not going to happen. People aren't all going to suddenly flock
to a gay marriage when they are attracted to the opposite gender. I know I
wouldn't. Would you? If not, why do you think others will? A relatively
small portion of the population is attracted to the same gender, so no worries
that all the young folk are going to give up heterosexual marriage.
markmongie said, "This country and the Constitution are inseparably
connected to Judeo-Christian values."If this were true why is
there no mention of the "Judeo-Christian" god anywhere in the document?
Why did the framers include the religious test prohibition in Article VI? Why
did the 1st Amendment protect the right of every American to violate the 1st,
2nd, and 3rd commandments? One would think that if "Judeo-Christian
Values" were the driving force behind the USA they would have been reflected
in its constitution.markmongie said, "You cannot pick and choose
which tried-and-tested religious and government laws will or will not work
together."Ours is a secular nation with a secular governing
document defining the roles government and the protected rights of the
citizens--ALL the citizens. What it does not define, and rightly so, is how
government and religious laws will "work together." Simply stated,
religious laws have no place in civil law in a free society. None. You are free
to practice your religion but you do not have the right to demand that I live by
your religious laws. Ever.
@not-a-y-fan who wrote:"You said that gay marriage does not hurt
children... But when it comes to the creation of children...it hurts. It is
impossible for two males to conceive a child by themselves. It is impossible for
two females to conceive a child by themselves. Does this hurt society and
children?...Yes."So. You think that as long as we keep LGBT
folk from marrying who they want they'll just say, "Oh, well. *sigh* I
guess I'll go make babies with someone I don't love." ?!?Believe it or not, people (gay and straight) have babies outside of marriage.
People (gay and straight) adopt children -- in and out of marriage.The fact is that marriage equality will change the quantity of children by
exactly zero (no more, no fewer).Also, I would strongly recommend
you brush up on the subject of "homosexuality." You seem to have missed
some basic concepts. (Don't feel bad. The State of Utah says equally
uninformed things in their arguments.)
Utah Attorney General Sean Reyes:"I did express to them that I
was sorry that they were feeling pain. This is not an easy thing to do when you
know that people that you care about on both sides of the issue will be affected
very significantly and very personally."What was he talking
about? I see how the outcome of this will significantly and personally affect
the couples that can't get married, but how will it affect the ones who
already can get married or already are?
@not-a-y-fan...What exactly is your point regarding the "effects" on
children? How does it specifically "hurt" children along with society as
you so eloquently stated? Are you inferring that a SSM couple could not properly
raise a highly intelligent productive member of society? You are aware that Utah
will not be the first state once the Federal Court upholds Judge Shelby's
ruling? Also you are aware I'm most certain that SSM couples have been
raising children throughout civilization? How does SSM weaken your own?
Don't you believe that your marriage isn't as strong as you believe if
another's weakens your own?
@ WonderYes it does hurt children psychologically. It confuses them
and denies them a parent of one gender or another. It is so completely obvious
that it's amazing how creative people have to get to explain it away. If God or nature meant for two of the same gender to pair up sexually,
He or nature would have designed the human body to be more adaptable to one
gender or the other. But He (or it- nature) didn't. This is a distortion
that cannot be explained biologically, let alone spiritually and if humans
continue to give into this and call it normal, there will be generations of very
mixed up people. I'm so sad for my grandchildren who will have to live
amongst all this confusion.For those with same gender attraction,
don't give into it! You CAN live a happy, fulfilling life without it. Turn
to Voices of Hope and read. It's proof that you can be happy.
@ Wonder and others,Yes it does hurt children. It confuses them and
denies them a parent of one gender or another. There is no way in the world
anyone will convince me otherwise. Those children will unquestionably have to go
through something psychologically damaging at some point in their lives because
of it the absence of one gender parent and/or the absence of a biologically
sound family. Guaranteed!
@Coach Biff"....if Loving is to be the litmus test, why wasn't
same sex marriage codified 30 years ago?"First, hat question
wasn't before the court in that case. Courts don't issue remedies
that go beyond addressing the problems presented before the court. Just as the
Windsor case didn't directly address the validity of state bans on same sex
marriage but it did outline the legal reasoning for striking down those bans.
Second, if you like, I can pull some quotes from dissenting opinions
and arguments in Sharp v. Perez where people were predicting that lifting bans
on interracial marriage would lead to striking down bans against polygamy and
incest. That case was decided by the California Supreme Court in 1948. 66
years later none of those predictions held true. Considering the arguments
presented today against same sex marriage parrallel the arguments used against
interracial marriage, it's difficult to logically make the same conclusion
that did not come to fruition decades ago.
@the truth"....if Loving is to be the litmus test, why wasn't
same sex marriage codified 30 years ago?"Please show me where
the 14th a Amendment is limited to biologically deterministic characteristics.
There is nothing in the wording of the amendment that limits it's
application to genetic or other immutable characteristics. Issues involving
such things as age, race, and gender will cause the courts to give those issues
more careful scrutiny. But you will find no precedent that says the 14th
Amendment can be disregarded based solely on behavior or characteristics that
I personally accept that Same-Sex marriage is now part of our society. I do not
advocate for it though. I believe in Traditional marriage.I do know
people who are gay, and accept their decisions as what they chose was best for
them. I may not agree with their decisions, but, heck, I don't
always agree with my parent's decisions.
The 14th Amendment, particularly the Equal Protection Clause, is the focal point
of judicial decisions rejecting irrational or unnecessary discrimination against
people belonging to various groups. It came about as a result of reconstruction
following the civil war and was particularly forced upon southern states before
they were allowed to be represented in Congress again.But with many
good intentions, it has been abused for not only this issue but also things like
Roe v. Wade and even lately regarding those snowboards wanting to be on Alta.I do not consider it irrational to legislate marriage according to local
"family-centric" standards when the small group chooses an immoral
I fail to see that marriage is a "right" that needs constitutional
protection. Therefore, I cannot see same-sex marriage fall under the Equal
Protection clause of the Constitution. I certainly don't see that it is in
the public interest either. Same-sex marriage does not produce children or
create families through natural means and therefore does not qualify for the
same protection as traditional marriage where children are potentially involved.
I am perfectly aware of the gay agenda, but on legal and moral grounds I cannot
support the idea that marriage must be re-defined in order to accommodate those
who wish to alter an institution centuries old and is necessary for the
propagation of the human race when gay marriage proponents cannot be justified
on either ground.
@USU-Logan:"However, for fundamental issues, like whether a couple of
different races can get married, whether a couple of same gender can get
married, the federal judiciary system should have a say."Do you
feel the same way about polygamy, close cousins, mother/son, father/daughter,
etc. marriages?"It should not be like in the past, interracial
couples can get married in one state but not in another state."In Utah, everyone can marry so long as they marry someone of the opposite sex,
are of a certain age, are not closely related, etc. This applies to all
citizens, so there's no 14th Amendment violation.If SSM is
allowed, all other conceivable marriage combinations that can be conjured should
also be allowed, lest there be gross discrimination.@koseighty:"'Traditional' marriages will NOT be affected in any
way."Not so. Traditional marriage will disappear off the face
of the earth... supplanted by myriads of other marriage combinations. You may
well be able to marry your entire neighborhood if you love them. SSM people are
asserting they should be able to marry whom they love. The reader can take it
Re:Outsideview"gay civil unions had every benefit that heterosexual
married couples did. It was only the term "marriage" that was being
fought over"So the only difference between same-sex marriage and
heterosexual marriage should be what it is called?Why is that, other
than making it of less value or lower status? We want kids, growing
up in same-sex households to know their family is of lower value?What is Christ-like in that?
@my_two_cents_worth:"If this were true why is there no mention of the
'Judeo-Christian' god anywhere in the document?"Read
Article VII... "done... in the year of our Lord..." I think it's
the Judo-Christian 'Lord" they're referencing.
The presumptuous attitude of same-sex marriage advocates is breathtaking. They
argue in favor of launching one of the most radical unproven social experiments
in the history of humankind, then challenge the opposition to PROOVE that it
will undermine existing social tradition. Blind arrogance.Who can
say what good or harm may result? Certainly not the advocates of these sweeping
@Coach Biff "We are granting tacit approval to an unhealthy lifestyle
choice."Just like we do now with tacit approval of felony
spousal, child, drug and alcohol legal civil marriages?Oh the horror
of a loving committed same-sex couple becoming legally civil married. I feel a
gathering storm coming on and I am afraid.
@Coleman51 "I fail to see that marriage is a "right" that needs
constitutional protection."Except that 15 times since 1888, the
United States Supreme Court has stated that marriage is a fundamental right of
all individuals. In these cases, the Court has reaffirmed that “freedom
of personal choice in matters of marriage” is “one of the liberties
protected by the Due Process Clause,” “essential to the orderly
pursuit of happiness by free men,” and “sheltered by the Fourteenth
Amendment against the State’s unwarranted usurpation, disregard, or
disrespect.” The last case (Windsor) was two women. Windsor
v. United States..State laws defining and regulating marriage, of course, must
respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388
U. S. 1 (1967); but, subject to those guarantees, “regulation of domestic
relations” is “an area that has long been regarded as a virtually
exclusive province of the States.”It is well-established and
crystal clear that the right to marry is a central aspect of the right to
liberty, privacy, association, and identity.
I'm hoping for the fire and brimstone to start raining down. If it
doesn't, what are all of you claims that "god is mad" or "god
hates "gays" going to do when absolutely NOTHING HAPPENS?How
will you cognitively dissonance that away?
From what I understand, this 3-judge panel's decision could affect six
states in making SSM legal. And in those six states, we have a spectrum of bans
to SSM, from New Mexico, where I live, that never defined marriage as between a
man and a woman, because it said "two people" to a position in another
of these states that not only wanted to ban SSM but ban anything that came close
to resembling it, which meant it also effectively banned civil unions. So in one
stroke, this panel of three judges could sweep away voter approved bans. On this
issue, I've never understood how voter approval should have been allowed in
deciding other voter's civil rights. To me this is the crux, and every ban
in the US that allowed voters to vote on another group of voters civil rights
should never have been allowed to exist. But the Supreme Court did not want to
sweep away this issue as it did with abortion more than a quarter century ago.
Instead they set up this state-by-state fight. This is what we're seeing in
I attended the arguments at the 10th Cir. and happy to answer questions folks
might have. My take-away is that one judge is predisposed against
affirming Shelby and SSM in general. So the Kitchens side will need both of the
remaining judges to affirm Shelby's summary judgment. But I sensed each are
equally skeptical of Utah's case and cautious of getting too far ahead of
SCOTUS. I predict the 10th Cir. remands the case for trial (which
summary judgment bypasses) for two reasons: first, it saves the 10th Cir. from
deciding if SSM requires a higher level of scrutiny than rational basis.
Second, if they presume rational-basis, Utah's pleadings thus far (ie
"maybe" a risk for SSM kids) could be sufficient to squeak by under
rational basis review. The 10th Cir. might prefer a repeat of the
recent MI trial, where the same experts/evidence relied upon by Utah were
absolutely shredded, and the SSM-ban fell. This trial-level scrutiny and
take-down in Utah (and Okla) would bolster a finding of 'animus' on
later appeal to better fit SCOTUS precedent, compared to just looking at
Utah's ballot language.
I listened to the Oral Arguments and Peggy Tomsic is continually being bailed
out by Judge Lucero whenever the questions were too tough for her --which was
often--. My conclusion from oral arguments is that the Appellant Court
doesn't want to decide this case for Utah because of the polygamy issue and
so they will punt the case.
@Neanderthal 11:46 p.m. April 10, 2014@my_two_cents_worth:"If this were true why is there no mention of the
'Judeo-Christian' god anywhere in the document?"Read
Article VII... "done... in the year of our Lord..." I think it's
the Judo-Christian 'Lord" they're referencing.-------------That's just the dating convention of the time.
Please show me an actual PROVISION in the Constitution referencing
God or religion. Hint -- there's just two places either is mentioned --
(1) in the First Amendment which provides that people can worship as they choose
and that government cannot establish religion and (2)in the Eighth Amendment
which provides that no religious test can be used as a qualification for public
@WTS "Not so. Traditional marriage will disappear off the face of the
earth."Should we hold homosexuals accountable for global
warming too and the failure of opposite-sex couples to act in away the state or
a religion believes they should? Sky will fall argumentation
wasn't constitutional when folks wanted to intermarry and still
doesn't trump due process and equal protection guarantees.Sexual orientation has been determined to be fundamental to a persons identity
and person-hood. A requirement to change someones (heterosexual, homosexual,
bi-sexual) sexual orientation in order to civil marry is not only unreasonable,
but unconstitutional. A right to marry someone for which there is no attraction
or desire of intimacy is no right at all. Current civil marriage law
has a presumption of intimacy, a type of relationship that is fundamentally
different than the one you have with other family members, where a legal family
relationship already exists. Same-sex couples through civil marriage establish
the same family relationship with the presumption of intimacy as opposite-sex
@ Stephen "Utah's pleadings thus far (ie "maybe" a risk for SSM
kids).." thus a rational basis. Even if such a risk existed, it
would be over-inclusive since Utah law does screen for risk in civil marriage
law. There is no parental fitness (or procreative) test in Utah's civil
marriage law, and it would be unconstitutional to target only same-sex couples
as a class for a new state marriage policy on suspected risk. Convicted
spousal, child, drug and alcohol abusers can legally civil marry where the risks
are well known. The state does not check marriage license applicants for
criminal records, income and educational levels for example, good predictors of
child outcomes. Also, animus is glaring in the law itself, not only
can't same-sex couples civil marry, no other relationship or union will be
recognized. For example "Not only will a sibling not inherit the IRA, they
are completely disinherited from everything else = Animus.
Three judges and 3 branches of government. Basic civics states that "the
people make the laws". The judges interpret the wishes of the people who
crafted those laws. Rule by judicial fiat is making many people in this country
very uncomfortable and agitated. It happened in California with Prop 8 and it
will undoubtedly happen again in Utah. There will be an appeal to the Supreme
Court and the Supreme Court will remand it back to a lower court. Once again,
there will be frustration and agitation that "the will of the people" is
@fact based: "Also, animus is glaring in the law itself, not only can't
same-sex couples civil marry, no other relationship or union will be
recognized."Personally, I agree with your point, and this is
what the Kitchens attorney threw back at Judge Kelly. Kelly appeared to
misunderstand the subtlety of the standard that Windsor introduced for SSM
(Kelly: animus = "mean-spirited and bigoted" when Windsor suggests that
animus can be found in the practical impact, not some bad intent of legislators
or voters). So yes, the additional ban on -any- legal recognition of same-sex
couples may doom Utah, if not now, at a remanded trial.The vibe I
got from the other 2 judges was a hesitancy to clarify the fuzzy Windsor
standard, and instead fall back on a lower rational-basis review, in which case
there seemed to be some willingness to give Utah a pass, despite the relatively
bogus "research" they claim gives them reason for concern, and thus
legitimate state interest (rational basis standard).
Wow, these comments!Get a grip, People. If/when same-sex marriage
becomes the law of your state, the sky will not fall. Your church will still be
there. Your moral view and opinions will not be illegal. You'll still be
free to speak your mind, and free to teach your children your precepts,
principles, and doctrine.Your marriage will survive. Your
heterosexual children can still get married when they grow up. The only change
will be, that the one in twenty or so of your children who grow up gay will also
be able to get married. You may have kicked them out of your life by then, and
you may boycott their wedding, if they even invite you, but at least
they'll still have some chance at happiness, even without you in their
lives.The only ones who lose in this are those people who have a
burning desire to visit total misery on those gay children of theirs, their
extended families, their neighbors and their colleagues.I'll
hold you in the Light until you get over that.
@wrz"If SSM is allowed, all other conceivable marriage combinations
that can be conjured should also be allowed, lest there be gross
discrimination."Not so. SSM is currently allowed in 17 states.
Also in other 8 states SSM ban has been struck down by court, that is because
the opponents of SSM could not provide compelling argument why same sex couples
should not be allowed to get married. However, if the government can
provide rational, legitimate reason why marriage should be limited to monogamy,
to un-related couples, it can still be kept that way."Traditional marriage will disappear off the face of the earth...
supplanted by myriads of other marriage combinations."Frankly,
the "sky is falling" argument is getting old.
@JBQThe outcome of an election is always the best solution. Take the
case of 3 starving wolves and a delicious lamb voting though the political
process on what to eat for lunch. The majority should always rule. What is the
majority of starving wolves to do, go hungry?The actual point of
Constitutional law is that the Fourteenth Amendment protects the minority from
the majority. That's how our checks & balances system of government
works. Historically, if the vote of the people had been able to stand as the law
of the land, women would have not gotten the vote, interracial marriages would
still be prohibited, and our schools would still be segregated. it is an
education in itself to read any of the rulings released by federal judges who
have ruled on this issue. Essentially, your disapproval is not sufficient
grounds for establishing a law of discrimination.Sadly for some, the right
to life, liberty, and property,to free speech, a free press, freedom of worship
and assembly, and other fundamental rights may not be submitted to vote; they
depend on the outcome of NO elections.
O'really says:"For those with same gender attraction, don't
give into it! You CAN live a happy, fulfilling life without it. Turn to Voices
of Hope and read. It's proof that you can be happy."RanchHand says as rebuttal:"For those with same gender attraction,
ACCEPT it! You CAN live a happy, fulfilling life with it. Turn to Voices of Hope
and read. It's proof that you can be happy.""Yes it
does hurt children. It confuses them and denies them a parent of one gender or
another."-- So does death, divorce, prison, etc. What's
your point?@A Run;Thank you. I know that was hard, but
sincerely, thank you.@Jacala"Immoral behavior"
is relative. Personally, I view your position as "immoral" because you
prefer discrimination against your fellow citizens.@coleman51;Do you receive governmental protections and benefits from your
relationship? Equal treatment requires ours receive that same protection and
benefit. You know, 'equal'.@wrz;"In Utah,
everyone has religious freedom... as long as it's Mormon". How does
that sound to you?@Jim Cobabe;We don't restrict
freedom and rights based on "might happen".
@rondonaghe;We don't "vote" on rights; that's why
they're called "rights". Voter approved or not, you don't get
to vote away another's rights.@JBQ;You still have
the matter of constitutionality. Not just "majority rules".IMO, if the judges rule that Utah's argument about "what's best
for the children" wins, then thousands of Utah heterosexual parents had
better run for state lines, because their kids could be taken away as these
parents don't meet the "good for children" test.Thieves, murderers, adulterers, divorced, criminal record, lack of education,
SINGLE PARENTS, etc. Run for your freedom and to keep your kids!
@Stephen "Give Utah a pass, despite the relatively bogus "research"
they claim gives them reason for concern, and thus legitimate state interest
(rational basis standard)."I agree, I also suspect that if Utah
is given a pass (child outcome risk being a legitimate state interest), is that
their proffered rationale is way under-inclusive (I mistakenly said
over-inclusive). Assuming 'parental fitness tests' pass
constitutional muster, and is in-effect for everyone else, then I think Utah
could be on much more solid ground. Targeting only homosexuals as a class for
"child outcome risk" is ripe for a constitutional challenge. Researchers in the fields of child development and family psychologycommonly
use convenience studies as a methodological tool for studying issues of interest
because they, in contrast to large-scale studies, offer the opportunity for a
more detailed analysisof the circumstances affecting children and their parents.
150 in number, have repeatedly demonstrated that there is no scientific basis to
conclude that children raised by same-sex parents fare worse than those raised
by heterosexual parents.
I'm hopeful that the court will do the right thing. I'm also hopeful
that this case will set the precedent, and make SSM legal throughout the
country. Two people who have the same "parts" getting married will
affect me in no way.
Neanderthal said, "Read Article VII... "done... in the year of our
Lord..."That's a pretty big stretch. First, Anno Domini
(AD-that standard dating still in use today) translates to "year of the
lord" and is as religion neutral as "in god we trust" on US
currency. Second, if your claim that "in the year of the lord" is, in
fact, part and parcel of Article VII then it logically follows that the
subsequent 40 signatures are also part of the Article; something I think we can
all agree is absurd. Third, the very first amendment to the Constitution clearly
shows that the US constitution is not linked to "Judeo-Christian" or any
other religious values other than the value afforded all Americans to worship as
Render unto Caesar what is Caesars.Since when did we look to
government to sanction our beliefs? Now, we control the local law by
voting majority, we should set a precedent not to comingle law with morality.
The law exists for man's liberty...not his salvation. Demographics indicate
our majority will wane.Promote laws that promote choice wherever
choice causes no tangible harm to another.We've become our
great grandfathers' persecutors...enforce a morality that we prize over
another's with government's bayonet. Gay marriage bans are so fully
encompassed by the shadow of 1890s anti-polygamy reasoning, that advocates
against gay marriage are best described as modern-day Johnston
soldiers--quelling the gay rebellion.I'm not gay. I don't
understand same sex attraction. I value liberty. I choose to tolerate
homosexuality, but recognize the Constitution does not require me to. The
Constitution requires I afford homosexual behavior that same liberty, if not
tolerance, which Wilford appealed for 120 years ago on these same streets.Asking man's government adjudicate morals belonging to God smacks
of a lack faith and implies God is not an able Judge on his own time and terms.
Please comment. I always felt that gay marriage, and gay rights in
general, were best described as expressions of belief and a persons feelings.
Therefore, 1st Amendment issues. Marriage, to me, is an expression and contract
of commitment within a family.Thus, I always sided with gay and
gender freedoms based upon the 1st Amendment protections, because, like
religion, it is protected expression and speech regarding a persons deep felt
beliefs and feelings.I have never been convinced that this is a 14th
Amendment issue and that status could be defined by "sexuality." Race,
nationality, and gender are all physically recognizable traits which invite
discrimination. Sexuality is not. Only the expression of sexuality can invite
discrimination. Therefore, I never felt this was a "status" issue. Am I alone in this thought? Does anyone else believe that framing this
debate within the confines of 14th Amendment threatens to blow apart the
carefully and exceptionally defined "protected status" designations and
render them meaningless?
Pleblian: "Race, nationality, and gender are all physically recognizable
traits which invite discrimination. Sexuality is not. Only the expression of
sexuality can invite discrimination. Therefore, I never felt this was a
"status" issue. "-----------Gender, age,
race, AND religion are areas that one cannot discriminate against. The 14th
amendment guarantees that ALL people are treated equally under the law, whether
you can see the differences (race) or not (religion, sexual preference.) Does it make more sense now? Let me quote a part of that 14th
amendment: "No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States..."That says nothing about seeing a difference. Does Amendment 3 abridge the
privileges of gays? Are they citizens? How can Amendment 3 be constitutional?
The so-called persecuted will inevitably become the persecutors, by their
radical element. Beware America. The Trojan Horse will become Trajan of Roman
yore. History can repeat itself, by mankind's slippery slope. Christians of
the world beware.
@ morpunkt"The so-called persecuted will inevitably become the
persecutors."So we should continue to oppress and discriminate because
you are afraid you might be treated the way you treat others? That's an
interesting interpretation of the old bible teaching: Do unto others as you
would have done unto you, unless you think the thing they would do unto you is
somethig like what you are right now doing unto them.
@ Ranchhand The fire and brimstone doesn't always come immediately, but it
does and will come. Maybe not in this life necessarily, but we'll all be
judged by a God who has been generous enough to give us life saving
commandments. It's worth it to pay attention to them and follow them. @ Ranch ( maybe the same person?) I'm not sure you intended to
leave in the last sentence you quoted me on because if you did, you're
contradicting yourself. Or maybe you're not aware of the book and
organization of "Voices of Hope" that help and encourage those with same
gender attraction to remain chaste by either becoming a strong, clean, celibate
single person with great worth or allowing themselves to develop feelings for
the opposite gender and marry them. It has been a successful and happy venture
for many. By the way, chastity doesn't include same gender physical
intimacy before or after "marriage". I'm pretty sure you know that
but thought I'd toss it out there for anyone who didn't know.
@Lane Meyers,I appreciate and agree with you that Amendment 3 may
not be constitutional.The point of my previous post was I believe it
is the First Amendment which protects sexuality. Perhaps the 14th's equal
protections clause protects their right to marry--but that assumes 1) marriage
is a right; 2) they are a class of citizens. I for one, am not in favor of
creating or recognizing any more rights. This, in spite of prior Supreme Court
dicta. Digressive dicta should not, in and of itself, create a right where the
legislature has not. Two, if homosexuals are not considering themselves a
"protected class" then they are treated equally because they, like
everyone else, can marry the opposite sex. Otherwise, if I can prove sufficient
genetic diversity, why can I not marry my cousin? Are same-family attractions,
barring genetic risk, also a protected "class"?In sum,
outlawing a behavior and expression--homosexuality, marriage--should be
prevented by the 1st Amendment, not by redefining a behavior as a protectable
"status"--which is a perilous judicial construct as it is.
First, thanks to Henry Drummond for direction to audio. Have listened to it
twice now. Schaerr excellent. Oral argument better quality than brief. Tomsic
a bit plodding in style, but did solid job. IMO, both sides can feel were well
represented. Agree much focus on Windsor's silence on level of
scrutiny to be applied.Stephen Daedalus: Will take you up on offer,
thanks. Hope you’re still watching this thread. My questions:1-Is fact that all other courts have found that bans fail under rational basis
alone controlling or due serious consideration?2-Can they consider
evidence already presented in MI trial? (Why need to try same facts again?)3-Is answer to Holmes' "rational basis review + science
inconclusive" that State does not require risk analysis before issuing
licenses to known child abusers, wife beaters, others we already know increase
risk of bad outcome?I think Judge Kelly is looking for a way to
delay by remanding. While this may be disappointing, I think would be in SSM
proponents’ favor, as Michigan trial demonstrated. Facts/evidence are on
pro-SSM side. Hearing on OK case in two weeks should be
pleblain: Otherwise, if I can prove sufficient genetic diversity, why can I not
marry my cousin? --------You can in a few states. Just
get married there and come back to Utah. Utah will accept that marriage, even
though it is barred by Utah law ( I should qualify that you can marry your
cousin in Utah as long as one of you is sterile.). But if a gay
couple marries in MA and comes back to Utah, they are not recognized. Why? Do
you think that there is a little prejudice in play here? Can you see that gays
are being treated differently than other citizens? Would you use the 14th
amendment now?Rights are already ours. Aren't we born with
them? Women always had the right to vote, but the laws prohibited it for most
of our history. Then people changed and the laws reflected the truths. I think
this is another one of those instances. Just like interracial marriages were
always right, just not legal. Now they are legal.
Many undoubtedly voted for Utah's Amendment 3 because of sincerely held
religious beliefs that homosexuality is wrong or that gay marriage conflicts
with doctrinal teachings. For them, the ban ensured that their “strongly
held values” are “reflected in the law.” However, those
beliefs cannot justify State-sponsored discrimination. “The same
Constitution that protects the free exercise of one’s faith is the same
Constitution that prevents the state from either mandating adherence to an
established religion or ‘enforcing private moral or religious beliefs
without an accompanying secular purpose. Some people also have “sincerely
held religious beliefs” against interracial dating and interracial
marriage. The Constitution prevents the State from enforcing such beliefs and
simply recognizes that such views cannot deprive citizens of their rights.Prejudice rises not from malice or hostile animus alone. It may result
as well from insensitivity caused by simple want of careful, rational reflection
or from some instinctive mechanism to guard against people who appear to be
different from ourselves.”
@Plebian,Slippery-slope arguments decrying that if States cannot ban
same-sex marriage, they will have to allow plural marriage, marriage between
siblings, and marriage to young children. Virginia’s counsel
raised the same specter in Loving v. Virginia, arguing that Virginia’s
“prohibition of interracial marriage” stood “on the same
footing as the prohibition of polygamous marriage, or incestuous marriage or the
prescription of minimum ages at which people may marry and the prevention of the
marriage of people who are mentally incompetent.” These tactics are NO
more persuasive in 2014 than they were in 1967. Even assuming someone could
rationally explain how permitting an interracial or same- sex couple to marry
will force the State to permit three or more people to marry, the Supreme Court
upheld the constitutionality of laws barring polygamy in Reynolds v. United
States. Reynolds has been on the books for 135 years establishing weighty stare
decisis considerations. There is also valid state interest and rational basis
in laws intended to prevent harm and abuse in closed faith promoting communities
where abuse is well known to be under reported.
What two people do in the privacy of the home is their business, and what kind
of sex a person likes to have does not belong in the public domain. It is their
business if they are gay. And if this is a case of “equality for
everyone,” then should heterosexuals be allowed to share with their
employer and everyone else in society what kind of sex they like to have, and do
so without expecting repercussions for openly sharing the kind of sex they like
to have?The logic of the pro-gay marriage crowd would dictate that 3
heterosexual couples who get together for orgies should be able to be married as
a group with each man being married to all three women and with each woman being
married to all three men. It is about group sex couples having “rights as
humans to be able to equally marry” as single partner couples do, and
“it’s about benefits and adoption rights.” They just
“want equal rights” and “equal protection.” This is the
same logic of the pro-gay marriage crowd, and those quotes are the words they
Marriage between a man and a woman was given to us by God long before the United
States government became involved. If gay marriage is a “human
right,” it cannot be granted by the United States government. Those who
insist that it can must be willing to accept the corollary that human rights can
be denied the United States government.
@O'really;Same person, different computers (had problems using
same account on both for whatever reason, it wouldn't allow me to save
comments, weird).WE LGBT on this comment board and others are the
true "voices of hope". We are examples that you CAN be happy as an out
LGBT individual. We are examples that LGBT individuals CAN form successful,
monogamous, loving, committed relationships with one another. My partner and I
have been together over 15 years now. Many other LGBT people on this thread are
also in long-term relationships.The "voices of hope" you
reference are frauds and are actually HARMING LGBT people.Love will
conquer. We will be allowed to marry, even in backwater Utah.
@TonyThe Supreme Court has consistently ruled that marriage is a
fundamental right protected by the Due Process and Equal Protection Clauses.
Marriage is among the rights “‘of basic importance in our
society,’ rights sheltered by the Fourteenth Amendment against the
State’s unwarranted usurpation, disregard, or disrespect.” Maynard
v. Hill. Because marriage is a fundamental right, a law that
“significantly interferes” with that right is subject to
“critical examination,” not mere “rational basis”
review. One can argue that laws which substantially interfere with the right to
marry are subject to strict scrutiny. Strict scrutiny is attached to the
fundamental right in question. It is well-settled that courts must
apply “strict scrutiny” to laws and regulations “that
‘significantly interfere’ with the right to marry.Moreover, all individuals means all individuals. Loving teaches that the
Fourteenth Amendment protects the fundamental right to marry, even if the way in
which it is practiced would have surprised the Constitutions Framers or made
them un-comfy. Perhaps SSM is simply manifestations of one right; the right to
marry as applied to people with different sexual identities.
@ Jim Cobabe"[The arrogance of SSM advocates to] challenge the
opposition to PROOVE that it will undermine existing social tradition."When did we ever prove that LGBTs are inherently immoral? It has always
been a presumption based in ignorance. Further, if we are abiding by the Golden
Rule, shouldn’t our first presumption be “innocent until proven
guilty?” Wait. I’ve heard of that before…________________Discussion on animus in the hearing: Very happy to
hear the meaning distinguished as “improper purpose or effect.” Ill
intent not required. I have never believed that most had ill intent in mind
when these bans were passed, but rather sincere (albeit unjustified) belief.________________Judge Lucero asked how the circumstances created
by Utah's refusal to acknowledge legal marriages from other states were
different than those present in the Dred Scott case. Nice! The State
acknowledged that children of gay couples legally married elsewhere that then
moved to Utah would suffer because the State would not recognize the marriages.
When asked how this squared with the State's "child-centric"
argument, Mr. Schaerr brushed this off with, "There are always trade-offs in
these matters." Not so nice.
I would like to know what the definition of marriage is by those who support
same-sex marriage.As for me it is the union between a male and
female for the purpose of procreating. Comparing same-sex marriage
to race is ridiculous. If same-sex marriage is allowed then marring
ones cousin or sibling should be allowed. Right? Or even your mother or father.
The SCOTUS may be the one to interpret the law on this land, but it's
God's land. He will have the final say as to what is a right or not.
Marriage is a privilege, and is an ordinance established by God. They may
"win" this and have their desires past to change what God has ordained
from the beginning, but in the end we will all give an account to God for our
own actions. Like the person above stated, the government should
stay out of religion. This is the problem. Government got involved in marriage
and never should have gotten involved in religious matters. You can not compare
this issue to the issue of inter"racial" marriages. It's not the
same and it's an insult to all of us people of color. This isn't the
civil right issue of the day. People in SSR have never had to drink from another
fountain and have never been made slaves because of their sexual preference.
Stop with the comparisons.
@gwtchd wrote:"I would like to know what the definition of
marriage is by those who support same-sex marriage.As for me it is
the union between a male and female for the purpose of procreating."So an elderly male-female couple aren't married in your
definition?"Comparing same-sex marriage to race is
ridiculous."You know what would be really ridiculous? Comparing
same-sex marriage to incestuous relationships..."If same-sex
marriage is allowed then marring ones cousin or sibling should be allowed.
Right? Or even your mother or father. Right?"...which you just
@gwtchdGriswold v. Connecticut upheld the right of married couples not to
procreate. The Supreme Court did not find a problem severing the link between
marriage and procreation. And Turner found—even in the prison context
(where deference to State government approaches its apogee)—that no
legitimate interest could support denying inmates the right to marry, despite
their inability to procreate, let alone to consummate the marriage. What is more, both cases described important values of marriage that transcend
mere procreation: “Marriage is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being sacred.” Griswold.
“It is an association that promotes a way of life, not causes; a harmony
in living, not political faiths; a bilateral loyalty, not commercial or social
projects. Yet it is an association for as noble a purpose as any involved in our
prior decisions.” Id. Marriage involves “expressions of emotional
support and public commitment,” “spiritual significance,” and
“expression of personal dedication.” A right to marry someone for
which there is no attraction or desire of intimacy is not right at all. Does that help address your inquiry?
@Karen:1. No, 10th Cir need not consider that all lower courts are
finding SSM-bans fail under rational basis, but I'm sure its on their mind
even if not controlling since it caused Utah to disclaim one 'expert'
and makes it harder to consider an outlier position.2. 10th Cir.
can't use MI trial record (findings of fact) directly for the UT appeal.
But the MI case was a small elephant in room, when judge commented on Utah
distancing itself from the now-debunked Regnerus. 3. Utah's
inconsistency in not barring demonstrably bad opposite-sex parents from marriage
goes to the 'nexus' issue, the second part of the rational basis
analysis (related to @equal/@fair thread above). Even IF the science is deemed
unsettled (thus a question of fact in need of trial), 10th Cir, like the lower
courts, might as a matter of law find insufficient nexus.A remand
might act a pressure release valve: voters from each state can hear the weakness
of the rationales that carried the SSM-ban elections, rather than blaming the
judiciary.And yes, a rare shout-out to Dred Scott! I'm sure
that one left a mark.
14th Amendment it forbids states from denying any person "life, liberty or
property, without due process of law" or to "deny to any person within
its jurisdiction the equal protection of the laws.” By directly mentioning
the role of the states, the 14th Amendment greatly expanded the protection of
civil rights to all Americans and is cited in more litigation than any other
amendment.The following are civil rights protected: Civil
Rights: Race, color, national origin, disability, age, sex, religion. No
where does it say Sexual orientation or preference. Sorry!Sex means
gender...look it up. I believe the lawyers know all this and the
judges know all this. There is no way that same sex marriage is protected under
amendment 14 or civil rights.
@ StephenThank you. I have a few more questions if you don't
mind. First, I was wondering about your impression of the exchange when Judge
Kelly was pressing Tomsic on animus and Judge Lucero interrupted to ask,
"Has public policy ever been allowed to overrule Constitutional rights?"
On tape it came across like a rescue, but newspaper accounts suggest there is
more to the story. Was wondering what your take was.Also, did it
bother you that Judge Kelly brought up polygamy? I've always seen this as
a red herring because polygamy raises issues of delineation of rights flowing
from marriage that do not arise in 2-person marriages. Am I missing something?
@gwtchdKind sir or madam, It is well-established and crystal clear
that the right to marry is a central aspect of the right to liberty, privacy,
association, and identity as determined by SCOTUS interpreting the US
Constitution and making case law. Fifteen times since 1888, the
United States Supreme Court has stated that marriage is a fundamental right of
all individuals. In these cases, the Court has reaffirmed that “freedom
of personal choice in matters of marriage” is “one of the liberties
protected by the Due Process Clause,” “essential to the orderly
pursuit of happiness by free men,” and “sheltered by the Fourteenth
Amendment against the State’s unwarranted usurpation, disregard, or
disrespect.”If you feel so inclined kindly become familiar
with these two cases.1. Maynard v. Hill, 125 U.S. 190, 205, 211
(1888) ...... 15. United States v Windsor 570 U.S. (2013)
@ Stephenre: Utah's inconsistency in not barring demonstrably
bad opposite-sex parents from marriage goes to the 'nexus' issue, the
second part of the rational basis analysis (related to @equal/@fair thread
above)."Another issue that may be on point, is that even if Utah
tired to ban demonstrably bad opposite-sex parents, this too (parental fitness
test) would not be constitutional. Marriage being a fundamental right. Turner v. Safley, prison inmates - "impermissibly burdened"
their right to marry. This decision is in line with the Supreme Court's
decision in Loving v. Virginia that the right to marry is a fundamental right
protected by the liberty element of the due process clause.
@Karen: re: Judge Kelly on animus & polygamy.I've not
listened to the tape, but the body language among all three judges suggested
frustration on Lucero's part and bemusement on the part of Holmes with
Kelly.On animus, Kelly seemed to imply a sort of infallibility of
state-level democracy which came off as legally befuddled and maybe even
embarrassing to Lurcero -- as if the idea of judicial/constitutional scrutiny as
a check/balance on direct democracy was something Kelly was shocked to be
hearing about for the first time. If Lucero was rescuing Tomsic in
this regard, it seemed less to slip her an answer, but rather to save her from
the unenviable task of explaining a fundamental legal concept in single syllable
words to one of her legal elders. Lucero was rescuing Kelly if anything. Kelly's polygamy comment was also odd. The slippery slope fallacy
is common online but surprising to hear from a judge. In fact, when Utah's
lawyer first raised it, he was politely redirected. After Kelly brought it up
again during Tomsic's argument, and folks realized he wasn't cracking
a joke, it just felt awkward and a bit sad.
Stephen Daedalus, (Please don't respond. If you have any left, save your
remaining comment(s) for later!)Thank you so much for that
court-watchers-eye view of the proceedings! That's one of the things
that's sadly missing from so much of the reporting.One of the
problems listening to the audio, is trying to guess which judge is speaking, and
without any of the non-verbal clues, such as who a judge is looking at, facial
expression, and body language, we barely get half of the context.I
don't know too much about appellate decisions, but from what little
I've heard of Supreme Court proceedings, I get the impression that the
judges mostly use the lawyers as foils to make their own points with each other,
sort of a peek into what will go on when they enter deliberations. That's
when the real argument must happen!It also seems like judges
sometimes play devil's advocate just to rattle the lawyers, or to bolster
their own creds as impartial. There was certainly a lot of rattling going on in
this hearing. Not to mention Dred Scott!
@ StephenYour willingness to take questions is much appreciated.
Thank you for your comments and observations. Looking forward to hearing on
When something affects you personally--like not being allowed the same rights as
every other citizen, it is personal.
@dmcveyIt is also personal when someone disregards your religion and
shoves their agenda down your throat.
@ AvenueYour religion has nothing to do with somebody else's
@AvenueYour religion is not above the constitution of the United
@Two For FlinchingActually, it does. Allow me to quote from my
religion's standing on marriage and the family "we warn that the
disintegration of the family will bring upon individuals, communities, and
nations the calamities foretold by ancient and modern prophets." (The
Family: A Proclamation to the World)My opposition of SSM is derived from
this statement. Many ancient civilizations have been destroyed for advocating
homosexuality.@YBHThe Constitution doesn't require states
to legalize SSM. All people can marry, as long as it is within the conditions
the law has set. This gives everyone equal protection under the law, as required
by the 14th Amendment.