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Ruling on affirmative action ban now being argued in Utah same-sex marriage case

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  • curtisjunk San Francisco, CA
    May 4, 2014 2:33 p.m.

    The problem with this particular bit of insanity is that banning an affirmative preference is not what was at play here. The people of the state of Utah decided to deprive people of their rights, not give LGBT a privileged status. I know that "special rights" plays to the peanut gallery at a GOP convention or a neighborhood Tea Party rally, but where thoughtful educated people gather such nonsense holds no water. The Sutherland Institute is an increasingly desperate organization and the only thing the people of Utah should be demanding is that their reputation and historic legacy be salvaged by giving this disgusting bigoted defense of Utah's ban a rest.

  • Kally Salt Lake City, UT
    May 4, 2014 1:13 p.m.

    @ Sal: Interesting thing about the 14th Amendment - it makes no mention of race.

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

  • MaaronSLC Salt Lake City, UT
    May 4, 2014 12:43 p.m.

    Schaer's brief states:

    "A couple has no gender, which is by definition a characteristic of an individual. Here, there is no dispute that Utah’s marriage definition treats individuals the same with respect to sex: to marry, each must choose someone of the opposite sex, and consequently Utah’s law is neutral with respect to sex."

    So, let me change a few words and see how it reads now:

    "A couple has no race, which is by definition a characteristic of an individual. Here, there is no dispute that Utah’s marriage definition treats individuals the same with respect to race: to marry, each must choose someone of the same race, and consequently Utah’s law is neutral with respect to race."

  • USU-Logan Logan, UT
    May 4, 2014 11:35 a.m.

    @Sal

    The case brought before the courts had everything to do with a man and another man or a woman and another woman who had been denied marriage based on gender.

  • Laura Bilington Maple Valley, WA
    May 4, 2014 10:41 a.m.

    @Sal------ Richard Loving’s valid (in DC) marriage license was not recognized in VA because the person he chose to marry was black. Had Mildred Loving been white, their marriage would have been recognized. The court affirmed his right to marry and to choose his own partner and said that the race restriction (enshrined in VA law) was not imposed for any rational reason, and that the state government needed to show a compelling state interest before they could impose restrictions. That is exactly the argument that SSM lawsuits are using.

  • Sal Provo, UT
    May 3, 2014 7:42 p.m.

    Laura, the case brought before the courts had everything to do with a black and a white who had been denied marriage based on race. They didn't need to mention 'marriage'.

  • Laura Bilington Maple Valley, WA
    May 3, 2014 6:38 p.m.

    @Henry Drummond says “the State of Utah was practicing marital Affirmative Action by giving special preference to opposite sex couples.”

    Utah did not “give preference” to opposite sex couples; it required them to be opposite sex in order to marry and denied licenses to same sex couples. Unlike seats in the freshman class, there are not a limited number of marriage licenses available.

    To all readers who give the slippery slope argument: Years ago, many states set the age of consent for marriage at 21. In the seventies they were all lowered to 18. No one has ever sued to lower the age to 12 on the grounds that “if you lower it from 21, there’s no reason not to lower it to 12”. Since Loving was decided over 50 years ago, no one has sued, arguing that since the same-race laws were deemed invalid, the state could not uphold laws regarding consanguity.

    @Sal--please read the Fourteenth Amendment before you talk about what it guarantees. It doesn't mention marriage at all--just says that a state cannot make laws which deny citizens equal protection. This was the clause that was used in Brown to throw out school segregation laws.

  • Riverton Cougar Riverton, UT
    May 3, 2014 5:16 p.m.

    "This is not true of same-sex couples - denying them the right to marry someone of the same gender makes access to marriage meaningless and is a de facto denial of the right to marry."

    BUT same-sex couples are not denied the right to marry someone of the opposite sex, and heterosexuals are also denied the "right" to marry people of the same sex. If it's between a man and a man, it's not a marriage. Simple as that.

  • JeffreyRO555 Auburn Hills, MI
    May 3, 2014 2:21 p.m.

    How on earth does a decision regarding affirmative action relate to denying gay people their constitutional right to equal treatment? Utah is really reaching on this one. Their case is just that weak, I guess!

  • Sal Provo, UT
    May 3, 2014 12:18 p.m.

    There is nothing in the Constitution that guarantees equality in marriage for same-sex individuals. Amendment 14 guarantees equality in marriage between a man and a woman--no mention of same-sex unions. It's a stretch for the courts to interpret it as such.

    The Supreme Court should allow this to play out in the states, one by one. The people have the right to amend the Constitution, not the courts.

  • QuercusQate Wasatch Co., UT
    May 3, 2014 11:49 a.m.

    @wrz 9:05 p.m. May 2, 2014

    "...of legal age, only one person, not already married, no close relative, only man/woman....

    One of these things is not like the other. The first 4 have a rational basis for exclusion from state marriage laws; the 5th, on the other hand, does not. Two consenting adults, be they male/male, female/female, or black/white do NOT have a rational reason to be told they can't marry like the other hetero, white folks.

    For the sake of those of us who have to endure your repetitive and faulty logic-a-fying, abandon your silly argument for inequality in CIVIL law.

  • Kally Salt Lake City, UT
    May 3, 2014 11:33 a.m.

    @ Alfred: Your inability to inarticulate a logical, legal argument against same-sex marriage does not automatically mean that there are no logical, legal arguments against the scenarios you posit.

    There are very sound, logical, legal reasons against child marriages, marriages to animals, and marriages to inanimate objects.

    There are sound, logical, legal reasons against incest and incestuous marriages. (FYI - parent/child, sibling/sibling, aunt or uncle/niece or nephew relationships are all forms of incest - listing them all individually doesn't change that.)

    Cousin marriages are already allowed under certain circumstances in many states and even states which don't allow them or whose circumstances have not been clearly met, recognize them as valid marriages.

    There are several legal issues that exist in polygamous relationships that do not exist in couple marriages - until those issues can be resolved, they present valid reasons not to allow polygamy.

    You can throw as many slippery-slope red herrings around as you want - they won't suddenly become logical, legal reasons for prohibiting same-sex marriage.

  • Henry Drummond San Jose, CA
    May 3, 2014 11:01 a.m.

    Gene Schaerr's argument was that the State of Utah was practicing marital Affirmative Action by giving special preference to opposite sex couples. I'm not sure how a Supreme Court ruling that goes against the concept of Affirmative Action helps you. You're kinda of arguing the case for the other side.

  • Daedalus, Stephen ARVADA, CO
    May 3, 2014 10:17 a.m.

    As others have noted, the Michigan case (Schuette) doesn't help Utah's case.

    Google: 12-682_j4ek.pdf for the Schuette opinion.

    SCOTUS overturned the 6th Cir. holding that Michigan's voter-approved ban on racial preferences within public sector employment, education, and contracting was unconstitutional. SCOTUS held that the 6th Cir. misapplied a prior ruling (Seattle) which had a narrow holding: it is unconstitutional for voters statewide to narrowly target and overturn a local school district's agreement to remedy historical racial discrimination/segregation through busing. In Seattle, there were overtones of unconstitutional segregation of public schools.

    In contrast, in Schuette there is no fundamental right for any race to receive preferential treatment, so it does not matter if voters take the power to use racial preferences out of the hands of public university regents/boards, etc.

    Schuette's comments about the deference that courts must afford state/local laws is phrased as stating-the-obvious, but that general rule is repeatedly qualified to make clear that such deference applies only when the state laws do not violate the U.S. Constitution, an idea also mentioned as a sort of no-brainer.

  • Furry1993 Ogden, UT
    May 3, 2014 8:31 a.m.

    @wrz 9:05 p.m. May 2, 2014

    I've heard your argument before, back in the 1960s. Only then it said "There is no denial of constitutional rights re marriage in Utah... All can marry provided they meet state requirements, including: of legal age, only one person, not already married, no close relative, only someone of the same race, etc.....There you have it... the Constitution is not being violated when states ban inter-racial marriage." The US Supreme court, in a unanimous decision in Loving v Virginia, 388 U.S. 1 (1967), said that argument is totally wrong. Sorry -- your argument is a loser.

  • Hutterite American Fork, UT
    May 3, 2014 7:43 a.m.

    Michigan sought to eliminate a discrimination via state law. Utah seeks to maintain one. I don't think that's going to fly.

  • Laura Bilington Maple Valley, WA
    May 3, 2014 6:37 a.m.

    This article sounds like high quality satire. Mr. Schaerr is a lawyer--what was he thinking?

    Racial preferences are given to give a leg up to blacks, who have the double whammy of having been discriminated against historically e.g. slavery, housing restrictions, poorer schools. Affirmative action programs can include preferences in admission or hiring in situations where there are a limited number of positions available, extra programs to encourage minority teens to apply, enrichment programs in schools to enable those with poorer home backgrounds to gain the skills to pass the entrance tests, etc.

    And this relates to marriage equality---how?

    Are there programs in Utah to encourage gays--but not straights--to marry? Are there a limited number of marriage licenses available each year in Utah and a percentage of these are being reserved for gays? Are high schools teaching Marriage and Family Life to only a limited number of students, and gay kids are being given preference?

    If--big IF-- any of these were the case, then Schaerr would have a case--but the remedy would be to eliminate the "preferences" in these programs and expand the number of slots to allow all to participate.

  • My2Cents Taylorsville, UT
    May 3, 2014 3:31 a.m.

    FYI, equality is not a guaranteed right and never has been. They do have the right to have equal opportunity and what they do with opportunity is not something government or legislation has control of.

    This supreme court ruling is directed at all civil law cases regardless of the racist Sodomayer objects to and its stated in the ruling as such. The LGBT has no arguments now and neither does the NAACP and ACLU and all the race based organizations policies.

    Law of the land is that civil laws are not guaranteed and subject to state and local government creation and enforcment for the reasons that the constitution cannot be fair if it is used as a socialist tool to argue freedoms, liberties, and rights. Being gay is not a right just as being a criminal, a Jew, a christian, a lawyer is not a right.

    The LGBT is a dead issue for the supreme court. In their divine and worldly knowledge and wisdom our forefathers omitted civil and human rights laws from federal government and the bill of rights knowing the prejudices and arguments of chaos they can become. Then gave that power to each state to regulate.

  • Alfred Phoenix, AZ
    May 2, 2014 11:51 p.m.

    Red Corvette:
    "Dream on folks. Enjoy those fantasies until the Supreme Court rules that gay marriage equality is the law of the land."

    In which case everyone will soon be able to marry whom they choose and as many as they choose... including father, mother, son, daughter, aunt, uncle, cousin ,teens, sub-teens, and perhaps even someone else's spouse or your fav pony... in which case marriage will become a worthless and vanishing ritual.

  • Kalindra Salt Lake City, Utah
    May 2, 2014 11:20 p.m.

    Many legal scholars point to two major differences between the affirmative action case and same-sex marriage cases:

    1 - Saying that state universities cannot use race in determining admissions is not denying anyone the right to attend college simply because of their race - members of minority groups still have the right to attend college. This is not true of same-sex couples - denying them the right to marry someone of the same gender makes access to marriage meaningless and is a de facto denial of the right to marry.

    2 - Not being able to attend a specific university or college does not create a harm - the applicant can choose to attend a different university or college. This is not true for same-sex couples or their children and therefore denying them the protections and responsibilities of marriage does create a harm.

    It is established principle - reaffirmed by Kennedy in the recent ruling on affirmative action - that rights cannot be taken from the minority by the majority and laws, no matter how passed, cannot create a social harm against a discrete group.

    These are two completely separate issues and the ruling in one does not foretell the ruling in the other.

  • Kevin J. Kirkham Salt Lake City, UT
    May 2, 2014 11:16 p.m.

    The Michigan case was about whether voters can deny the granting of rights not offered to others. The Utah case is about whether voters can deny the equal rights to some while offering them to others. It's sad that the Gene Schaerr can't see the glaring difference between the two. I haven't seen something taken so badly out of context since I was speaking with the antis. Gene Schaerr should be ashamed. I am ashamed that he claims to represent Utahns and claims to represent honest legal debate.

  • Seldom Seen Smith Orcutt, CA
    May 2, 2014 9:56 p.m.

    Our country has no cultural norms, America is disintegrating.

  • LovelyDeseret Gilbert, AZ
    May 2, 2014 9:36 p.m.

    Wow Gene Schaerr is phenomenal. I can see why he doesn't lose very many cases. The Supreme Court is making it clear that States have rights and that all rights are given to the people by the people and not to the people by the Judiciary.

    When this is over, Schaerr should be Times man of the year, Utah should give him the key to the State.

  • rhappahannock Washington, DC
    May 2, 2014 9:27 p.m.

    Many of us have suffered abuse at the hands of those who have gone against nature. It is insulting to us to see gay marriage be promoted as a healthy lifestyle. Some consideration should be given to victims of abuse in this debate.

  • wrz Phoenix, AZ
    May 2, 2014 9:05 p.m.

    "...Peggy Tomsic wrote that the ruling 'did not and could not hold that voters can deny constitutional rights.'"

    There is no denial of constitutional rights re marriage in Utah... All can marry provided they meet state requirements, including: of legal age, only one person, not already married, no close relative, only man/woman, etc.

    "Kennedy said nothing in the Constitution or the court's prior cases gives judges the authority to undermine the election results."

    There you have it... the Constitution is not being violated when states ban SSM via a voter approved State Constitutional amendment... That includes not only SSM but a plethora of other banned marriage arrangements (such as noted above).

  • Willem Los Angeles, CA
    May 2, 2014 9:01 p.m.

    Friends this case has been lost long ago , equality for all will be the rule in our country very soon.

  • FatherOfFour WEST VALLEY CITY, UT
    May 2, 2014 8:40 p.m.

    So those who previously stated that LGBT equality was nothing at all like the civil rights movement or race-based rulings are now invoking a race related argument to shore up their case? Color me surprised.

  • A Scientist Provo, UT
    May 2, 2014 7:15 p.m.

    Reflectere wrote:

    "It's called fortifying - not scrambling. He obviously understands his case enough to identify current rulings which enhance the argument."

    Yes, "fortifying the truthiness of the argument".

    A sophistic technique used by those for whom truth and reality are plastic.

  • Reflectere Utah, UT
    May 2, 2014 6:30 p.m.

    It's called fortifying - not scrambling. He obviously understands his case enough to identify current rulings which enhance the argument.

  • Furry1993 Ogden, UT
    May 2, 2014 5:59 p.m.

    Schaerr is really scrambling. I guess he knows exactly how weak his case and position really are.