Comments about ‘Drew Clark: How the rule of law resolves differences among courts on marriage’

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Published: Sunday, July 6 2014 12:00 a.m. MDT

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Denver, CO

Do you hear wedding bells? In 2004 George Bush ran on a platform to pass a federal marriage amendment to limit marriage to one man and one woman, and now that the tables have turned, anti-gay activists are saying that marriage is a state's rights issue and that the federal government has no business defining constitutionally protected rights of its gay citizens. Stunning hypocrisy. The writing is on the wall however, this is not going to be a state's rights decision, too much water has passed under that bridge, even for this right leaning Supreme Court. Count on the 14th Amendment and Loving v. Virginia for precedent (overturning interracial marriage prohibitions, 1996). The recent decision in the 10th U.S. Circuit Court of Appeals ruling, with one dissenting justice, did not appreciably exacerbate disagreement on the matter (especially considering the unprecedented string of state court gay marriage victories), it essentially consolidated findings and precedent, a necessary step on the path to a Supreme Court finding. I also wouldn't hang my hat on the 8th Circuit decision, remember the reversal of Hardwick by Lawrence. So, do you hear wedding bells? I do.

Light and Liberty
St. George/Washington, UT

No matter what happens, despite the rule of law, the ruling will either defy the universal rule of law which states that marriage is only between a man and a women or it will reject it! By rejecting what is right, Americans will become more split, just as slavery split our nation. No matter what argument the south put forward, it was wrong, States' Rights to the contrary! The argument before this nation is not whether states should define this or the Federal government or courts, it is whether we want to defy God in the same way the southern states defied Him by wanting slavery to continue! Gay marriage is wrong because it strikes at the very heart of God's plan for the happiness of His children and the continuing unfolding of His plan. It doesn't matter whether you are an atheist or not. Slavery was wrong; so is Gay marriage!

seattle, WA

You fail to mention that the newest Appeals Court decision relied on a more current judgments by the US Supreme Court. This substantially alters the calculus you expound upon. And you fail to point out that judgements have been rendered under the jurisdiction of the 8th District Court of Appeals that are in conflict with that original Nebraska judgment. These judges used the logic of newer Supreme Court decisions.

There may or may not be further decisions from Appeals Courts soon that will better clarify how the Courts will be in accord with the many, many Federal District Court judgments that allow same sex marriage. Those opinions will serve as the basis for a US Supreme Court ruling or lack thereof.

This seems like a DN opinion that clutches at straws. All of the Courts so far, and the majority of the entire US populace has moved on from the restricted view of marriage. It is time the DN did as well.

Provo, UT

The Supreme Court should take the case simply because the circuit courts are arriving at the same decision: upholding same-sex marriages, but based on different reasons.

This shows clearly that these judges are activists determined to impose their own subjective prejudices rather than ruling on established precedent as required by the Constitution.

Bountiful, UT

The Supreme Court doesn't rule on social issues in a vacuum. They're aware of how issues are seen by the voting public, and often their rulings reflect society around them.

Dred Scott, Plessey vs Ferguson, Brown vs Board of Education, Loving vs Virginia... all took note of existing social norms, and often broader movements across the nation.

Would Brown vs Board of Education be possible in 1880? No. Loving vs Virginia? Hardly. Our nation was ready for these changes, even though the immediate culture in those locales was less ready.

The issue of gay marriage is very rapidly evolving, before our eyes. Whether it happens in 2015 or the Supremes wait a few years, it appears opinion among our people is headed one way - toward equality. (Even among young LDS, this issue is seen very differently than among their parents.)

This momentum is reflected in conservatives now clinging to the hope of a patchwork system of state law, when 10 years ago they preferred federal prohibition of gay marriage, outright.

Dietrich, ID

Courts overturning voter approved inititives is violation of States rights a Constitutional Amendment would not violate states rights as they have to approve constitution. And if passed that means people could not use the 14th amendment as reason for so called same gender marriage at expense of 10th amendment. No hypocrisy there.

Jeff Harris
Edmonds, WA

Nice try Drew, but there really is no split. This ship has already sailed. The ruling in the 8th circuit from 2006 predated the Supreme Court's Windsor 2013 decision that overturned portions of the misnamed Defense of Marriage Act. All of the recent district court's and the 10 Circuit Court's rulings that overturned anti-gay state laws cited Windsor as the binding precedent in their decisions. The far-right's great anti-gay hope, the Supreme Court's refusal to hear Baker v. Nelson in 1972, was shot down when the high court ruled in Windsor.

In the decision you referred to, but didn't name, Equal Protection v. Bruning, the U.S. Court of Appeals, 8th Circuit (2006), cited Baker as its precedent. Every court decision since Windsor make it clear that the Supreme Court found a federal question in anti-gay marriage statutes, something that didn't exist in 1972, rendering Baker moot.

The Supreme Court is unlikely to revisit the question unless one of the circuit courts decides differently post-Windsor. It might happen, but I wouldn't count on it.

Kearns, UT

I appreciate that you brought up the Nebraska case in the 8th Curcuit, but some details of that decision need to be looked at a little bit more. The courts decision was made based on the idea that sexual orientation is not a suspect classification, meaning that ones sexual orientation does not set that individual up be victims of discrimination. I believe that the current political climate can prove that judgment to be false.

Another problem with this case is that nine of the eleven judges in the 8th circuit at the time of the ruling were nominated by Republican presidents. While I like to think that all judges keep their own personal opinions from making decisions based on rule of law. it's hard to think that doesn't happen when there is a big imbalance like this one in the court.

A lot has changed since 2006, and every state in the 8th Circuit, except Iowa and Minnesota, have same-sex marriage lawsuits pending. It would be interesting to see what changes in that part of our country before we claim that there is a split.

Kevin J. Kirkham
Salt Lake City, UT

The issue boils down to this – When we "liken the scriptures (or the 14th Amendment) unto ourselves", should we adopt the overarching principle or should we only apply them if our circumstances mirror those addressed by the scriptures/law? SSM opponents assert the latter (at least concerning SSM).

1Cor10:29/D&C 134:4 forbid using morals as justification to infringe upon the rights of others. SSM opponents say that 1Cor10:29 applies only to religious liberties. This "narrow" view can stated marijuana isn’t against the WOW since it isn’t mentioned. Porn is OK since we aren’t looking upon a woman to lust after her. We’re looking upon paper or pixels. Narrow interpretations lead to detailed do's/don’'ts in the Law of Moses and in our current secular laws. Some have stated that the 1st Amendment’s free speech clause originated due to political speech, that the 1st only applies to that and not free expression in general. 2nd Amendment opponents often assert that it only applies to muskets and not AK47s.

D&C 101:78-80 wants maximum freedom to maximize agency. Let this be our view.

Here, UT


Is your own marriage recognized when you travel across the nation, from state to state? Are you single in one state, married in the next, single again when you cross another state line? No?

Then why should the legal marriages of LGBT Americans be treated differently?

Bigotry, Drew, is a moral issue. Discrmination, Drew, is a moral issue. LGBT Marriage isn't.

LL says:

"...the universal rule of law which states that marriage is only between a man and a women ..."

"Universal rule of law" states that? Ha, ha, ha. Not. Your god is irrelevant as we are not a theocracy. If you want to live under a theocracy, move to Iran.


The 14th Amendment is a part of the US Constitution.


False. That is their job; determine the Constitutionality of laws.

E Sam
Provo, UT

Sorry, but the Nebraska case was pre-Windsor. I do think it's possible that SCOTUS will grant cert, though. They like to put their mark on the biggies.

Cleveland , OH

@Light and Liberty:

Perhaps you have read some science-fiction alternate history story. The defense of slavery was almost totally based in the claims that the Bible advocated and endorsed slavery, that Africans had the "Mark of Cain" and were inferior.

A century of institutionalized and legal racism and segregation were based on the same claims of "what the Bible says."

Even the most cursory reading of speeches and sermons and statements from about 1810 to the 1970s will show how strongly mainstream Christianity supported and justified racism and segregation as God's will on race mixing and an orderly society. The Southern Baptist Convention came into existence because southerners felt missionaries should be able to own slaves; Falwell's "Moral Majority" originated 125 years later to resist integration of schools.

Those who fought against slavery and segregation were radicals and liberals who were willing to reject the traditional teachings and claims about the Biblical basis and justification for slavery.

On the really important issues of equality for all, "the Bible says" and "God's will" have been on the wrong side every single time in the last 200 years.

Petersburg, AK

And just where in the Constitution are these principles articulated?

I find a few principles in the Declaration of Independence, but by and in large the principles upon which our nation was built are to be found (as the 1892 Supreme Court stated in "The Church of the Holy Trinity vs. the U.S.,) in Christianity. That is the basis of the systemic problems we are now encountering, the failure to secure any founding principles (the Constitution is really just procedural).

That, to me is very self-evident to the objective party.

Logan, UT

@Light and Liberty,

It is almost comical that you put slavery is wrong and states' rights in the same passage. Don't you know people in the South used to claim that slavery and segregation are states' rights?


People may buy your "activist judge' argument, if some of the 20+ separated court rulings on this issue rule in your side of favor, but unfortunately, not even one of these rulings are on your side, including Republican appointees. That fact itself is already very telling.

In Kentucky, lawyers for the state argued heterosexual marriage leads to a stable birthrate and economic stability. Judge John Heyburn (a George H.W. Bush appointee) said, "These arguments are not those of serious people."

In Pennsylvania, Judge John Jones III (a George W. Bush appointee) wrote, "In future generations, the label 'same-sex marriage' will be abandoned, to be replaced simply by 'marriage.' We are a better people than what these laws represent..."

In Michigan, Judge Bernard Friedman (a Reagan appointee) wrote, "Many Michigan residents have religious convictions whose principles. . .inform their own view points about marriage. Nevertheless, these views cannot strip other citizens of the guarantees of equal protection."

The Wraith
Kaysville, UT

@Light and Liberty

If, as you say, the South as defying god by wanting to keep slavery then why were so many of their pro slavery arguments founded on the bible and the belief that slavery was a divinely appointed institution? You really should do some actual research and read the arguments the South put forward to defend slavery. They drip with references to god and the bible. In their view getting rid of slavery was an insult to god.

Had you been born in the South in the early 1800's you would have likely thought the same.

Allowing same sex marriage to become legal will not defy gods law or any other universal law. Guess what will happen when same sex marriage is legalized. Nothing. The world and America will move on and we will be a better, stronger nation. There will be no fire from the sky, no destruction from above. What will the religious right say when all of their dire projections prove false?

Tooele, UT

Re: "This momentum is reflected in conservatives now clinging to the hope of a patchwork system . . . ."

It's not conservatives that have produced this patchwork system. Rather, it's disingenuous LGBT activists that, although they know that the Supreme Court has clearly held that the law does not protect same-sex marriage, actively seek out the one or two corrupt activist jurists in the federal judiciary that are willing to abrogate their oath of office and support their rhetorical sophistry.

They hope to sway the Supreme Court's corrupt leftists, and one or two of its clearer thinkers.

They'll fail.

Petersburg, AK

The author cites the Constitution as the source of these apparently ambiguous "principles" and then closes by saying that it's really court precedent that matters. I would love to know which principles and where they are found.

@Light and Liberty,
Some of us could read your arguments clearly and some of us could even see how right they are. We could also see how what some people have done "in the name of God" is different than what God adjudges as right and wrong. Further that inasmuch as our view of God and His desires is correct and we comply, we prosper, and inasmuch as we contort, misconstrue or set His will at defiance, we harm ourselves and each other.

Morality has a source people.

Henry Drummond
San Jose, CA

The editorial is correct. It only take four justices for the Supreme Court to take the case. Go for broke.

Dietrich, ID

For those that say the tide is turning, man cannot make moral what God declared immoral. Since the Devil wants us to be miserable and knows we will if we misuse our creative powers will try to pressure people to think it is ok and marriage will make it legal. However people that engage in that behavior will still be miserable and since the Devil does not support those that listen to him in the end the recent expirement of so called same gendered marriage will collapse under the weight of it's own iniquity.

Besides why do they demand marriage when many have left opposite sex partners and very few gay people are monogamous. High rate of STD's among them. Legalizing behavior won't make it go away any more than a law against gravity would make it go away.


It is cruel and unusual treatment of the LGBT community at large to tell them that they can get married and then put a stay on the ruling. They have waited for over 200 years for this day just as Black people have waited for come 100 Plus for their full civil rights after having them denited by Southern White Bigots. Time was the LGBT community could be executed (murdered is a more proper word here) for simply being born the way thatthe good Lord made them. Being an LGBT person is NOT a lifestyle (that is a chose way of life for instance a Golf lifestyle)but the way someone is born that is determined at the moment of conception.

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