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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Karen R.
Houston, TX

@ Stephen

Thank 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?

Evidence Not Junk Science
Iron, UT


Kind 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)

Evidence Not Junk Science
Iron, UT

@ Stephen

re: 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.

Stephen Daedalus
Arvada, CO

@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.

Philadelphia, PA

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!

Karen R.
Houston, TX

@ Stephen

Your willingness to take questions is much appreciated. Thank you for your comments and observations. Looking forward to hearing on Oklahoma case.

Los Angeles, CA

When something affects you personally--like not being allowed the same rights as every other citizen, it is personal.

Vernal, UT

It is also personal when someone disregards your religion and shoves their agenda down your throat.

Two For Flinching
Salt Lake City, UT

@ Avenue

Your religion has nothing to do with somebody else's sexual orientation.

Sugarland, TX


Your religion is not above the constitution of the United States.

Vernal, UT

@Two For Flinching
Actually, 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.

The 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.

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