Comments about ‘Same-sex marriage in Utah now in federal judges' hands’

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Published: Thursday, April 10 2014 11:10 a.m. MDT

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equal protection
Cedar, UT

@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.

Huntsville, UT

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?

Mesilla/USA, NM

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 this case.

Stephen Daedalus
Arvada, CO

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.

Gilbert, AZ

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.

Ogden, UT

@Neanderthal 11:46 p.m. April 10, 2014

"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 office.

equal protection
Cedar, UT

@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 couples.

fact based
Salt Lake, UT

@ 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.

Saint Louis, MO

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 being denied.

Stephen Daedalus
Arvada, CO

@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).

A Quaker
Brooklyn, NY

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.

Logan, UT

"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.

fact based
Salt Lake, UT


The 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.

Here, UT

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.


"Immoral behavior" is relative. Personally, I view your position as "immoral" because you prefer discrimination against your fellow citizens.


Do you receive governmental protections and benefits from your relationship? Equal treatment requires ours receive that same protection and benefit. You know, 'equal'.


"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".

Here, UT


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.


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!

equal protection
Cedar, UT

@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.

Draper, UT

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.

university place, WA

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 they please.

salt lake city, utah

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.

salt lake city, utah

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?

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