In the wake of Friday’s order by U.S. District Judge Robert J. Shelby to impose same-sex marriage immediately on the state of Utah, many fundamental questions arise about just how resilient is the constitutional guarantee of republican self-governance. But Gov. Gary Herbert and newly named Attorney General Sean Reyes have an historic opportunity to demonstrate resilience in the face of this challenge.
The unprecedented overreach by Judge Shelby — and most especially his refusal to temporarily stay the effects of his decision — has come at high cost. The immediate outcomes from Friday’s decision include a high dose of legal uncertainty for those licenses being issued under the court order as well as polarization of pubic opinion around these understandably emotional issues.
But self-governance rests on more than just the outcome of votes or court orders. It relies on a deeply embedded culture of civility, thoughtful participation in public decision-making, faithful adherence to legal process and visionary leadership. None of those was swept away on Friday by federal court order.
As the fate of Amendment 3 moves forward through the appellate process, we acknowledge that there are people of good will on both sides of this contentious issue, and we appreciate that Utah’s culture of civility and respect will continue to guide how this issue is engaged. The spirit of can-do volunteerism and community spirit that unite our state must prevail through this difficult conversation.
But even as we temper the volume of our voices, we encourage Utahns to stay engaged with the issues in an informed way. Utah’s Amendment 3 is not unique among the states. Thirty-three states have specifically amended their constitutions in the same manner. North Carolina did so just last year. It is expected within a well-functioning democracy that the people will enshrine into their fundamental law those principles most conducive to the protection of the family as the basic unit of society. Moral sentiment and experience can and should guide such protections.
It is also important to know that the legal process is moving forward. Utah has not changed its definition of marriage. A single federal judge has used a novel interpretation of the Constitution to prevent enforcement of that widely used definition. In the not-too-distant future, the collective wisdom of a three-judge panel on the 10th Circuit Court of Appeals will have the opportunity to review that definition — with further appeal available to the Supreme Court.
And it is precisely through this legal process that Utah will have a unique role to play. Utah’s Amendment 3 may provide precisely the robust legal case that will, in the end, preserve to the states their right to define marriage to be exclusively between and man and a woman.
Contrast Utah’s situation to that of California. In California when the constitutionally enacted definition of marriage as between one man and one woman was challenged in federal district court, neither the state’s governor nor the attorney general bothered to show up. Because the wrong parties were contesting the issues in court and on appeal, the ensuing litigation created more questions than answers and the U.S. Supreme Court vacated the appeal precisely because state officials had failed to defend what voters had approved.
Herbert and Reyes, however, have both the opportunity and the willingness to take a full and vigorous legal fight forward. Building on the extraordinary social and economic results that we believe stems from Utah’s deep-seated support of the traditional family, Herbert and Reyes can shape a full-vetting of the complex issues involved in this vitally important debate in both the courts and in the court of public opinion. The vision, tone and rigor that they bring to this debate will provide much needed leadership, not just for Utah, but for the nation.