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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Lane Myer
Salt Lake City, UT

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. "

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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?

morpunkt
Glendora, CA

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.

Jeff in NC
CASTLE HAYNE, NC

@ 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.

O'really
Idaho Falls, ID

@ 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.

pleblian
salt lake city, utah

@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.

Karen R.
Houston, TX

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 interesting!

Lane Myer
Salt Lake City, UT

pleblain: Otherwise, if I can prove sufficient genetic diversity, why can I not marry my cousin?

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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.

fact based
Salt Lake, UT

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.”

fact based
Salt Lake, UT

@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.

Tony1957
Yuba City, CA

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 use.

Tony1957
Yuba City, CA

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.

RanchHand
Huntsville, UT

@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.

Evidence Not Junk Science
Iron, UT

@Tony

The 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.

Karen R.
Houston, TX

@ 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…
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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.

gwtchd
Mountain Village, AK

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. Right?

Staylikethatforever
Lumerton, NC

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.

Understands Math
Lacey, WA

@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 did. *sigh*

Evidence Not Junk Science
Iron, UT

@gwtchd
Griswold 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?

Stephen Daedalus
Arvada, CO

@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.

gwtchd
Mountain Village, AK

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.

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