Richard Davis: Judge Shelby was wrong, but gay marriage momentum is a reality

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  • Russell Spencer Boise, ID
    Jan. 6, 2014 10:10 a.m.

    Yawn. While whether a state, under the full faith and credit clause, must recognize marriages that are considered valid in the state where performed may be a close question, whether the marriages performed under Shelby's order are valid isn't close at all. District court orders only apply to the parties before the court. So if your last name is "Kitchen" (or any of the other couples who were actually before the court), you can now validly get married in Utah. District court orders have ZERO precedential authority. So, if your last name is NOT "Kitchen" (et. al.), your marriage isn't valid unless Shelby's order is upheld AND the higher court essentially grandfathers the marriage into its ruling. If the high court overturns Shelby's order, then Amendment 3 was always valid (and in force) and NONE of the marriages performed under the order are valid, including the plaintiffs'.

  • Bob K portland, OR
    Jan. 4, 2014 1:56 a.m.

    Madison, AL
    "The Windsor case originated from a plaintiff who lived in a state that recognized same sex marriage."

    INCORRECT -- her wife was long dead and the inheritance tax long paid before the suit was brought in Federal Court, and had nothing at all to do with State laws.

    They had been married in Canada, shortly after it became legal.

  • jeclar2006 Oceanside, CA
    Jan. 3, 2014 11:43 a.m.

    Schadenfreude is the word that comes to my mind when reading of the current court action in Utah. Some posts in various venues suggest that it is ironic that similar court actions which dispatched the California ban on same-sex marriage, a ban the LDS Church was prominent in supporting.

    But I think the true irony of the situation is the fact that the founder of Mormonism, Joseph Smith, was murdered, in part due to the mob rule response to the early LDS practice of polygamy, and for which the Church continued a 50 year battle for the 'right' to marry as per then church doctrine. Of course since 1904 and the 'Second Manifesto' the LDS Church has been trying to bury this history.

    In this era of rapprochement I think LDS time would be better spent resolving the differences between the 'fundamentalist' LDSlers and the Downtown Salt Lake Church, rather than taking up arms towards other that have most likely no participation, or interest in the LDS Church at all.

  • DavidNL Holladay, UT
    Jan. 3, 2014 10:37 a.m.


    "Impeach the judge?" Seriously... This might be the only time today I type -- and mean -- LOL!

    You propose impeaching a judge who wrote a 53-page opinion invalidating a ten-year old law that most believe would not pass again if it were voted on today. A law that denies a small minority group a fundamental right and does exactly nothing to the majority. Since you obviously didn't read the case memorandum and order, you don't actually understand it or understand that the judge's decision was based ONLY on precedent established by the Supreme Court over the past century. You're right: someone doesn't understand either "law or democracy" but it's not the judge!

  • Chilidog Wheeling, IL
    Jan. 3, 2014 8:57 a.m.

    Is it that difficult to contemplate the possibility that Judge Shelby was right and the state of Utah is wrong?

  • Jeffsfla Glendale, CA
    Jan. 3, 2014 8:46 a.m.

    Mr. Davis. First let us make it clear. The SCOTUS has a very complex set of rules when a case is brought before them. The Prop 8 case needed to first make sure that both parties have standing before they can proceed with the case. If either of the parties do not have standing the rulings of the District Courts and the State Supreme Courts stand. The SCOTUS had not reached that stage to listen to the merits of the case. This is what will happen when a brave Governor or Attorney General, who has standing, brings a case to the court. As we seem on this path, I for one will be glad when this issue is finally resolved and we can show we are all Americans and same sex marriage will be equal under the law to opposite sex marriage.

  • LiberalJimmy Salt Lake City, UT
    Jan. 2, 2014 9:19 p.m.

    Care to give ANY facts how Judge Shelby's ruling was "wrong"? Facts do not mean biblical or other religious references...Utah better get used to change & very quickly. Times they are a changing as Dylan wrote.

  • Yorkshire City, Ut
    Jan. 2, 2014 5:29 p.m.

    article: "Given these options, perhaps it is time for Utahns to think about adjusting to a new reality of same-sex marriage. That would mean accepting those who are married legally as equal members of the community in terms of marital rights. It would mean acknowledging that while marriage between a man and a woman, by far, will remain the predominant form of marriage, there are exceptions for those who have same-sex attraction. Perhaps it also means rethinking what heterosexuals consider about marriage."

    Speaking for myself:
    Nope. Ain't gonna happen. No matter WHAT happens in the future, I will NEVER be accepting this author's suggestion.

  • RFLASH Salt Lake City, UT
    Jan. 2, 2014 5:23 p.m.

    I think that the thing that truly bothers me, deep inside, is the amount of people who take this as a personal attack on their beliefs and then don't even take one moment to consider what it is like for the gay person! It is all about them and about their beliefs! They don't take time to consider that we are who we are 24 hours a day! It isn't just about gay marriage! We have to consider their beliefs because they are the beliefs of our families, our friends, and our neighbors!. They are the beliefs of our co workers. How many of them take any time to realize,that we also believe in God! It is absolutely ridiculous to say that we are harming anyone's marriage or that we would want to! As a matter of fact, it is just another insult to us to say that we are harming the marriage of anyone! We are trying to do good with our lives and it is truly sad that others can not give us a little bit of respect! If we don't care about one another, what good is life?

  • RFLASH Salt Lake City, UT
    Jan. 2, 2014 5:13 p.m.

    I don't think the comparison to abortion laws was a good one. Nobody dies when two men get married! Shelby did have the right to do what he did or it wouldn't have happened, would it? He had to make a decision about the rights of human beings and he made that decision! 66% or 99% of a population does not have the right to deny an American his or her rights! You can make up any ridiculous excuse you want, but our rights were being denied. These rights are no less important just because the majority of the good Mormon people don't feel that they exist!
    Not all people in Utah believe in Eternal Temple Marriage. Can you imagine if 66% of the population came up with an amendment which denied people the opportunity to that! It is just an example! Mormons don't believe in gay marriage! GAY PEOPLE DO! So, because they have some demeaning belief about us and our lives, they get to deny us a right that they take for themselves? Don't tell me people don't understand! Shelby had every right and thank God he did it.

  • Bob K portland, OR
    Jan. 2, 2014 4:55 p.m.

    "there are exceptions for those who have same-sex attraction."

    --- A completely offensive, moralistic, and judgmental way of describing Gay people. But how could one expect differently from a person whose paycheck is signed by an organization that is part of a church that says "the truth is what we say it is"?

    In the first place, EVERYONE has some same-sex attraction at some point, or often. It is completely normal, but, for most people, quite minor. It is ordinary for, say, a married man seeing a sports star with no shirt and finding him "hot" at the moment, or a young girl having a crush on her best friend.

    Gay people are defined by their LOVE attraction to members of the same sex, which naturally results in romance and sex, in the same way that God gives those to people who love the opposite sex.

    Calling it an "attraction" seems to me to be part of the political agenda by some churches to tell their members to "get over it", because marrying heterosexually produces more church members.

    When churches mix into the public arena and try to force values which suit their agenda on other Americans........

  • 2 bits Cottonwood Heights, UT
    Jan. 2, 2014 4:42 p.m.

    At least you got the joke. That's a good thing. I may have my appeals messed up. I thought this already went to the Court of Appeals (since they are talking about appealing to the Supreme Court now).

    If/When it goes to the Court of Appeals in Denver I know how it will turn out... it will be a nice illustration of hypocrisy for a Colorado judge to be so worried about upholding the law in Utah, while he covers his eyes and ears while his own State openly violates Federal Laws.

    If this is a Constitutional issue... shouldn't the Supreme Court rule? I mean that's their job isn't it? I think they need to rule on it once and for all. They just dodged it last time.

    Utah isn't the only State that doesn't allow gay marriage, so it's going to keep coming up.

    I personally think it will open a pretty messy can of worms. Things the LGBT community never intended.

  • Moderate Salt Lake City, UT
    Jan. 2, 2014 4:00 p.m.

    2 bits "I find it rich that a Denver judge will nullify something he sees is illegal in Utah, but he won't overthrow the law that made recreational marijuana use legal in Denver (despite knowing it's illegal by Federal Law)."

    I get your joke, but who is "a Denver judge"? Judge Shelby is a Federal judge living in Utah. Do you mean the Court of Appeals in Denver? That court wasn't asked to rule on Utah's law. They simply ruled on a request for an emergency stay of Shelby's order. The Utah case conflicts with the Constitution. Colorado's marijuana law conflicts with Federal law, not the Constitution.

  • procuradorfiscal Tooele, UT
    Jan. 2, 2014 3:05 p.m.

    Re: "Because democratic processes are being distorted by a refusal to compromise, citizens are forced to turn to the courts . . . ."

    Liberal sophistry.

    It's that very resort to courts to decide issues outside both their jurisdiction and their competence that is distorting democratic processes.

    As liberals well know. But that doesn't stop their disingenuous bleating.

  • glendenbg Salt Lake City, UT
    Jan. 2, 2014 2:33 p.m.

    @Tyler - A while back, I read an article that political dysfunction was forcing the courts to become more powerful and influential.

    Abortion is a good example. There are policies that can reduce the rate of unplanned pregnancies and hence the incidence of abortion. Comprehensive sexuality education has been conclusively demonstrated to reduce unplanned pregnancy and hence the need for abortion. And yet, American conservatives routinely kill any such policy legislatively, then pursue draconian measures that courts routinely strike down as unconstitutional.

    Utah's Amendment 3 is another good example. Amendment three not only outlawed same sex marriage in Utah, it outlawed civil unions. Ten years ago, liberals would have gladly compromised and accepted civil unions. Utah conservatives however insisted on an absolutist policy banning same sex couples from marrying. Had it permitted civil unions, Judge Shelby would have had wiggle room in his decision. Heck, the suit may not have filed had same sex couples had access to civil unions with the same legal protections as marriage.

    Because democratic processes are being distorted by a refusal to compromise, citizens are forced to turn to the courts, who in turn are forced to deliver win/lose rulings.

  • 2 bits Cottonwood Heights, UT
    Jan. 2, 2014 12:40 p.m.

    Sounds like the Supreme Court isn't going to be able to dodge this decision and turning it away for much longer. In the California case they decided not to decide (because they decided the plaintiff had no standing). But as these cases keep coming go the Supreme Court... eventually they are going to have to make a decision. They can't dodge making a decision on this forever. Sooner or later a case where the plaintiff has standing is going to come to them and they are going to have to decide.

    It would be nice to get a final decision from the Supreme Court. So we don't just have to keep throwing it back to the lower courts and get all this bickering about a Denver judge overthrowing the vote of the people in Utah.


    As a side-note... I find it rich that a Denver judge will nullify something he sees is illegal in Utah, but he won't overthrow the law that made recreational marijuana use legal in Denver (despite knowing it's illegal by Federal Law).

  • Tyler D Meridian, ID
    Jan. 2, 2014 9:34 a.m.

    @Ranch and @ glendenbg

    Fair enough… and since (as a gay marriage supporter) I am highly sympathetic to the judge’s decision in this case I cannot fault or argue with your sentiments here.

    The only point I have tried (and obviously failed) to make is that this sort of judicial power is a two way street (as the court packing strategy by conservative testifies to).

    So someday if the SCOTUS ever overturns R v W (which I think the odds are better than 50%) and some conservative judge in a red state (or federal district) declares life begins at conception – granting full person rights to a newly fertilized egg of microscopic proportions (which conservatives will no doubt use the same “justice delayed is justice denied” line) - you may remember what some odd guy on the DN comment boards once said… or not.

    I promise I won’t post any “I told you so” comments if/when that occurs…

  • rushc centerville, UT
    Jan. 2, 2014 9:01 a.m.

    The attitude of the SCOTUS rulings clearly have been to accommodate state sanctioned same-sex marriages at the federal level, but not to sweepingly decide at a federal level that same-sex marriage is a right. In fact, although we can safely assume that she is in favor of same-sex marriage, Justice Ginsburg has been a proponent of "judicial restraint" on similarly polarizing issues.

    "Ginsburg told an audience Saturday at the University of Chicago Law School that while she supports a woman's right to choose, she feels the ruling by her predecessors on the court was too sweeping and gave abortion opponents a symbol to target. Ever since, she said, the momentum has been on the other side, with anger over Roe fueling a state-by-state campaign that has placed more restrictions on abortion."

    "Ginsburg told the students she prefers what she termed "judicial restraint" and argued that such an approach can be more effective than expansive, aggressive decisions."

    From a Huffington Post article "Ruth Bader Ginsburg: Roe v. Wade Ruling Flawed", dated 5/11/13

    I agree with the restraint comments, although it troubles me that she is talking tactics to enact an agenda she wants to roll out.

  • rushc centerville, UT
    Jan. 2, 2014 8:36 a.m.

    Yeah, we get it. Many of the commenters are happy with Judge Shelby because he is giving them what they want. But this is the sort of ruling that destroys public trust and inserts politics into judicial confirmations. In all of this hyperventilating over the need for gay marriage right now, the judge has probably hurt the (his) cause. Good luck to the President on getting any appointments approved in the Senate after this one.
    Mr Davis is right. Judge Shelby went beyond legal precedent and is intentionally pushing the envelope in a political move to push gay marriage forward. Apparently because he is a proponent. What other explanation can there be for using the SCOTUS dissenting opinion (which Judge Shelby apparently disagreed with generally) as the argument for calling the Utah state constitution unconstitutional? What other explanation is there for refusing to allow the status quo until higher court review has taken place. Everyone knew that this ruling wouldn't be the last word. Judges shouldn't act politically. His behavior in this instance has been reprehensible.

  • micawber Centerville, UT
    Jan. 2, 2014 7:39 a.m.

    @A Quaker:

    You say Utah does worse than every other state in terms of divorce. What do you mean by that?
    Utah's divorce rates are typically slightly above the national average. Of course, average is nothing to be proud of on this measure.

  • Ranch Here, UT
    Jan. 2, 2014 6:28 a.m.

    @Tyler D;

    "Justice delayed, is justice denied."

    Need I say more?

  • Ranch Here, UT
    Jan. 2, 2014 6:24 a.m.


    Overall, your comment is quite reasonable. I find one error though. While churches have the 1st Amendment right to not perform same-sex marriages in their organizations, the 1st Amendment does not give churches the right to demand marriage in the civil arena be denied to same-sex couples.

  • JMT Springville, UT
    Jan. 2, 2014 6:19 a.m.

    Well spoken. When a judge so obviously blows it, should they be removed from office? Among other things to take place maybe we should build momentum to have this judge impeached. It's more Obama/Lenin 'the end justifies the means.' Lawg and democracy mean nothing to progressives.

  • A Quaker Brooklyn, NY
    Jan. 1, 2014 11:52 p.m.

    As hard as it is, it's time to face reality. Families exist without marriage, and sadly, marriage exists without families. (The latter can be seen in Hollywood whirlwind relationships where divorce quickly follows marriage without a true bond ever developing.)

    Children. These little guys get born, with or without marriage and/or family. A huge number end up living in broken families, ones that seemingly start out okay, but fall apart for one reason or another. Utah does better than most states in terms of legitimate births. I think 19% are born out of wedlock, versus 41% nationwide. But, Utah does worse than every other state in terms of divorce.

    Marriage is no guarantee of anything, in terms of children and family formation. What it is, though, is an optional legal guarantee of succession, property and custody that every family should be eligible for. Most of the same-sex couples who rushed to marry in the last week or so have been functional families for years or decades. Their "evil plan" involves being able to take care of each other and their families as they age.

  • spring street SALT LAKE CITY, UT
    Jan. 1, 2014 11:43 p.m.

    Do you all understand that IF the appeals court or Supreme Court overturns the current deciosion it simply means that' while additional marriages would probably no of be allowed to continue tuntil a final decision the case will be remanded back to the lower courts for a full hearing? It would be far from the outright victory for those that oppose gay marriage that some of you seem to think.

  • glendenbg Salt Lake City, UT
    Jan. 1, 2014 11:23 p.m.

    @Tyler D - "I believe social change is far better, longer lasting, and less divisive when we can change the hearts & minds of the majority of citizens" is a common and generally good faith argument concerning any social change - it sounds compelling and common sense. Unless you're the person being told, "You can't marry a person of another race because some of your neighbors don't approve, " or "Your child has to go to a second class school because some of your neighbors don't approve of white children and black children sitting together in classrooms," or "You can't have the right to vote because some men don't approve of women voting."

    The closest historical example is the Loving decision striking down laws banning interracial marraige. At the time of the decision, the majority of Americans opposed it. Today 9% of Americans oppose interracial marriage.

    It's a good faith argument but would it pass Rawls' veil of ignorance test? Would you be okay with that argument if it were applied to your life, in some way?

  • Tyler D Meridian, ID
    Jan. 1, 2014 9:46 p.m.

    @RanchHand – “… the legislatures themselves should have that exclusive authority.”

    I’m talking about a proper balance between the branches of government and am only suggesting that rulings like this (where social policy is created) shift the balance in dangerous ways towards the judiciary.

    And we’re arguing about a difference in judicial philosophy, not the legitimacy of the judicial branch itself. I just happen to believe that a jurisprudence based on judicial restraint is more consistent with the principles of democracy than judges making broad, sweeping decisions on social change. I believe social change is far better, longer lasting, and less divisive when we can change the hearts & minds of the majority of citizens – and we were well on the way to doing that on the issue of gay marriage.

    Given the views of most people under 40, gay marriage will be a non-issue in no time, and if the change happens due to shifting opinion no one would feel as if lone judges had dictated the change.

    This precedent could be the new Roe v Wade – a highly divisive political issue for generations.

  • DavidNL Holladay, UT
    Jan. 1, 2014 9:39 p.m.

    Whether the judge's decision was wrong or premature will be decided within two years. For now, Richard Davis makes many valid points and is a voice of reason that indicates attitudes are improving toward same sex marriage, even among political or religious conservatives (although we don't know if either of these apply to Mr. Davis). Frankly, an uneasy progress is the best that can be hoped for right now as many religions will continue to invoke their 1st amendment rights as they stand by their definition of traditional marriage and sexual morality, which will by definition exclude and even reduce homosexuals, at minimum doctrinally. Regardless, Davis is the kind of thinking conservative who will ultimately help move the ball forward for both conservatives and progressives alike because he is being intellectually honest and forthright, and... in my recent experience on this topic, that gives me hope for an acceptable outcome for both sides!

  • procuradorfiscal Tooele, UT
    Jan. 1, 2014 9:07 p.m.

    Re: "It could very well be that Judge Shelby is merely repaving a path that has already been well established . . . ."

    Disingenuous liberal blather.

    Loving v. Virginia was the last in a series of cases that gave full effect to what clearly WAS intended by the 14th Amendment -- racial equality.

    No one can cite the slightest scintilla of evidence that proponents of the 14th Amendment ever intended or could even conceive of an argument that their efforts to legislate racial equality would ever be used to normalize or legalize marriages between persons of the same sex. Such behavior was illegal in all states at the time, and remained unaffected by it for more than a century afterward. Until activist liberal "judges" violated their oath and ethics to engage in disingenuous gamesmanship with the Constitution.

    Further, Shelby can't "repave" a path that was never paved. The latest pronouncements of courts whose precedents bind his legal actions are ALL to the contrary of his unsupportable rulings.

    He's WAY out there, completely on his own on this one.

    Sorry -- there's just no saving his clearly illegal rulings.

  • bubbafrombama Colorado Springs , CA
    Jan. 1, 2014 8:44 p.m.

    David from Centerville, UT is wrong above by his own admission. Mary, Jesus, God hello? And a lil FYI, but men are not needed after all: Google "sperm not needed to produce"

  • bubbafrombama Colorado Springs , CA
    Jan. 1, 2014 8:39 p.m.

    Davis wrote: "In the case, of Hollingsworth v. Perry (the Proposition 8 case), it remanded the case back to the lower district court because the plaintiffs (same-sex marriage opponents) lacked standing, which means the legal right to bring the case. It could have decided that California voters had no right to ban same-sex marriage. But it didn’t."

    Clearly he has no understanding of exactly what he wrote - Lack of standing means just that, and it WOULD have been judicial activism for SCOTUS to sidestep that lil procedural issue. They didn't rule on the merits of the case simply because of such. This article is simply asinine journalism at best.

  • atl134 Salt Lake City, UT
    Jan. 1, 2014 7:30 p.m.

    "Utah argues that they are designed to protect the children potentially born to a union of a man and a woman"

    A few things...
    1. Utah wanted the summary judgment so that's not Judge Shelby's fault, he did what both sides wanted in that regard.
    2. Inability to have children or choosing not to have children is not a disqualifying factor to marry so that can't be used against same-sex marriage.
    3. If you worry about same-sex couples adopting, that's not an issue because Utah lets single people adopt and I don't see how you could argue that single people adopting is okay but two people of the same gender adopting is not.

  • UTAH Bill Salt Lake City, UT
    Jan. 1, 2014 5:30 p.m.

    Mr. Davis should know that if SCOTUS supports the judge's decision - then it WAS the right decision per our judicial process as determined by the Constitution. For, what's legally right is determined by our courts, not by a writer's opinion.

  • RanchHand Huntsville, UT
    Jan. 1, 2014 3:59 p.m.


    LGBT couples have been raising children for generations. What about those children? Don't they matter to you?

    My friend and her partner just got married. Together they raised two children. Those children have produced grandchildren for the couple. How is this any different than a heterosexual couple?

    If marriage is about "protecting" the children (potential or actual), what about the children being raised in LGBT families?

  • Henry Drummond San Jose, CA
    Jan. 1, 2014 3:59 p.m.

    Some of the people who might be unhappy with your article are:

    1. Supreme Court Justice Scalia who wrote in dissent:
    "It takes real cheek for today’s majority to assure us, as it is
    going out the door, that a constitutional requirement to give formal
    recognition to same-sex marriage is not at issue here...How easy it is,
    indeed how inevitable, to reach the same conclusion with regard to state
    laws denying same-sex couples marital status." (2013 U.S. v Windsor)

    2. Judge Shelby who in his ruling noted that Utah missed three opportunities to file a request for a stay before it went into effect. Why are we still blaming him?

    3. Utah's new legal team who just finished making the very arguments you insist won't work.

    4. Me. But only mildly so. Your call for Utahns to adjust to Gay Marriage certainly shows common sense. You might have been a bit more optimistic, however. My experience with Utahns is that they are a notoriously kind and generous people who will reach out to those they once opposed when touched, as surely they will be, by the better Angels of their Nature.

    Happy New Year Utah!

  • Mustang Woodbridge, VA
    Jan. 1, 2014 3:45 p.m.

    "This is where the interracial marriage decision fails to be the precedent you think it is. An interracial couple is capable of producing children. A same-sex couple -- without intervention from an outside party -- cannot. The state has no interest in granting a same-sex union the same privileged status as an opposite-sex union."

    A couple problems with your logic here. The first is that MAKING children is the easy part. You can literally succeed without ever meaning to. RAISING children is the hard part.

    The second problem is that Utah already sanctions marriage between opposite sex first cousins. Provided they provide proof that they cannot reproduce. If this is about reproduction, then why sanction a marriage AS LONG AS reproduction is impossible?

  • Ultra Bob Cottonwood Heights, UT
    Jan. 1, 2014 3:42 p.m.

    When the ordinary people took up the fight to separate the colonies from England, they did so because of the promise of freedom for ordinary people equal to that of the rich and powerful.

    They were not concerned about high taxes, which government made the laws, or even religious freedom, they wanted individual freedom to do what they wanted to do. The Declaration of Independence implied that the new government for America would give them that freedom.

    The colonial governments were opposed to freedom for ordinary people and so started an internal war of states against the national government. The seemed to think that they could have their own laws to control their residents even if those laws were a counter to the promise of the national government.

    For whatever else, freedom for the individual is what the Constitution is about. Any law that takes freedom from people for reasons not associated with the freedom of others, is unconstitutional. Judge Shelby was right.

  • Nate Pleasant Grove, UT
    Jan. 1, 2014 2:20 p.m.

    @Schnee "nor shall any State...deny to any person within its jurisdiction the equal protection of the laws."

    So the essential question is, what are Utah's marriage laws designed to protect? Utah argues that they are designed to protect the children potentially born to a union of a man and a woman. Shelby's summary judgement was made before those arguments were fully examined. We assume the Supreme Court will be less hasty.

    This is where the interracial marriage decision fails to be the precedent you think it is. An interracial couple is capable of producing children. A same-sex couple -- without intervention from an outside party -- cannot. The state has no interest in granting a same-sex union the same privileged status as an opposite-sex union.

  • Schnee Salt Lake City, UT
    Jan. 1, 2014 1:35 p.m.

    "That amendment was clearly intended to equalize legal status, regardless of race."

    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.

    That's not merely a race based statement.

  • IndependentlyIndependent South Jordan, UT
    Jan. 1, 2014 1:17 p.m.

    This was a great editorial. I appreciate your level-headed approach to this issue, Richard Davis. I especially appreciated the closing paragraphs.

  • patriot Cedar Hills, UT
    Jan. 1, 2014 12:42 p.m.

    so is the fight against gay marriage a reality....

  • nonceleb Salt Lake City, UT
    Jan. 1, 2014 12:38 p.m.

    @ Strider303
    California divides property 50/50 regardless of gender. Also, as in a step-family, the biological parent of the child would get priority with custody in divorce. In heterosexual divorces the courts have to decide on custody disputes. That would be no different with same-sex divorces.

  • 10CC Bountiful, UT
    Jan. 1, 2014 12:10 p.m.


    You contradict yourself in saying "Changes to marriage laws are the exclusive domain of the legislative branch", after having noted the Loving v. Virginia supreme court case overturning anti-miscengenation laws banning interracial marriage.

    Which way is it? Or is it - more honestly - a mixture of both Legislative and Judicial decisions that have resulted in current marriage law?

    It's also worth noting that Loving v. Virginia was the last in a long series of cases involving interracial marriage, where previous rulings held that Equal Protection under the 14th Amendment did *not* apply to anti-miscengenation laws, including a case in Arizona where a white man tried to slip out of marriages to "colored" women by citing his own violation of laws against interracial marriage.

    Finally, a case in California, Perez v. Sharp in 1948, held that bans on interracial marriage did indeed violate the 14th Amendment, and the Supremes agreed, in Loving v. Virginia, in 1967.

    It could very well be that Judge Shelby is merely repaving a path that has already been well established, after the long history of laws and judicial decisions against interracial marriage.

  • PolishBear Charleston, WV
    Jan. 1, 2014 11:48 a.m.

    Strider303 writes, "Many of those happy celebrants at the clerks offices will be calling 9-1-1 DIVORCE in a few years. Who gets the pets, the house, the paintings, dare I say alimony?"

    I suppose you could ask the same about STRAIGHT couples whose marriages end in divorce. Divorce is an unpleasant matter for all concerned, whether the couple is Straight or Gay.

    All the Gay couples who are in a rush to get married? I would tell them the same thing I would say to any Straight couple: Don't rush into things unless you are ready to make a life-long commitment. The fact that divorce exists as an option doesn't mean it should be used unless absolutely necessary.

    Too many couples rush into marriage without thinking about it enough, and it has nothing to do with whether they are Gay or Straight. We never get into a relationship thinking about how it might ultimately end. When you're in love, it's all rainbows and unicorns. But MARRIAGE is supposed to be for life.

  • RanchHand Huntsville, UT
    Jan. 1, 2014 11:28 a.m.

    @Tyler; I hope this helps. Google the title over on SLTRIB & you can read the entire piece.

    "Independent federal judiciary is a cornerstone of Constitution"

    By Robert J. Adler

    ... criticism of an independent federal judiciary should read The Federalist No. 78, written in 1788 by Alexander Hamilton in defense of the proposed federal constitution.

    ... the rationale for federal judges to be appointed for life, ... the critical role of an independent federal judiciary to take the politically unpopular action of checking unconstitutional legislative acts. One duty of those jurists, Hamilton wrote, is "to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all of the reservations of particular rights or privileges [in the Constitution] would amount to nothing."

    This is the legitimate role both Judge Waddoups and Judge Shelby played in their recent decisions, ...

    Those who suggest that an independent judiciary should have no power to review the constitutionality of legislative acts necessarily assume that the legislatures themselves should have that exclusive authority. Hamilton... explained that placing so much authority in one branch of government would constitute an even greater threat to liberty:

  • nonceleb Salt Lake City, UT
    Jan. 1, 2014 11:25 a.m.

    While critics point to "activist" judge and "overreach," it is overlooked that Amendment 3 was "overreach." It went too far. It might have been on a slightly more valid legal ground if it just prevented same-sex marriages from being performed in Utah. But it would not recognize in Utah those marriages performed in states were it was legal. It was so draconian that it also forbade civil unions or any kind of contract which provided legal benefits and protections of marriage.

  • Strider303 Salt Lake City, UT
    Jan. 1, 2014 11:12 a.m.

    What a web we weave for ourselves. A concern of mine, among many, is what is phrased as the "law of unintended consequences". Are there some with homosexual unions recognized by the states as a marriage? I think so, but I have no inclination as to what they will be.

    We'll have to pass [a law] to see what's in it, to quote N. Pelosi. Nowhere is there a voice advocating a law regarding divorce for homosexual unions. If both parties are equal, and that is the mantra, how should the property be divided when divorce enters the equation?

    Many of those happy celebrants at the clerks offices will be calling 9-1-1 DIVORCE in a few years.

    Who gets the pets, the house, the paintings, dare I say alimony? Who gets custody of the children? If one of the couple gave birth to the child, does that give that person greater claim? If both are males, how should the court find?

    Sometimes it appears we are on a fool's quest for something called equality and yet we cannot define it.

    Walt Kelly said it best through Pogo Possum: "We Have Met The Enemy and He Is Us."

  • procuradorfiscal Tooele, UT
    Jan. 1, 2014 10:57 a.m.

    Re: "The courts have done this once before when they struck down interracial marriage bans, there's a precedent."

    Apples and oranges.

    Loving v. Virginia was merely one case in a series implementing the process begun when the 14th Amendment was passed. That amendment was clearly intended to equalize legal status, regardless of race.

    The 14th was never, however, intended to legalize what its proponents, to avoid indelicacy would have referred to as the infamous crime against nature, or of relationships based on it. It's Shelby's disingenuous repudiation of that legislative intent that will form the basis of the inevitable reversal of his insupportably activist opinion.

    The well-established doctrine of "stare decisis" simply does not authorize lower-court judges to torque longstanding higher-court law into liberal newspeak, regardless of desires to the contrary by agenda-driven liberal activists like Shelby.

    Changes to marriage laws are the exclusive province of the legislative branch. It must be left to that branch to assure necessary protections against chaos and overreach inherent in Shelby's rule of man, that departs so substantially from wise traditions of American rule of law.

  • Impartial7 DRAPER, UT
    Jan. 1, 2014 10:40 a.m.

    WHEN the Supreme Court upholds Judge Shelby's ruling, will Richard Davis write another D-News editorial admitting that HE was wrong?

  • 10CC Bountiful, UT
    Jan. 1, 2014 10:33 a.m.

    Richard Davis aptly points out that same sex marriage is coming. More & more states have recognized gay marriage, via legislative or judicial means.

    Lost in the firestorm of Shelby's decision and subsequent marriages is another critical ruling on marriage, specifically a court striking down part of Utah's anti-polygamy law.

    The doors are being opened toward expanded definitions of marriage, including same-sex couples, polygamy and perhaps even polyandry. There are instances of commune-type living arrangements where multiple men and women are committed to each other.

    At some point the question needs to arise of whether government should be in the marriage business at all. Depending on how some of these cases are decided, single people could litigate the preferential treatment that married people have, especially as it relates to taxes.

    Why should single people have to pay more in taxes than married people (even those marriages where no offspring is feasible, such as second marriages between elderly widows and widowers)?

    If there is no immediate benefit to society - ie, no children being produced - is it justified to discriminate against single people in taxation?

    Maybe government needs to get out of the marriage business altogether.

  • Ariz Madison, AL
    Jan. 1, 2014 10:00 a.m.

    As for Perry, the Supreme Court was correct for not ruling due to no standing by the defendants. Allowing any outside organization to be party to a suit simply because they have strong feelings about an issue yet are otherwise unaffected would be a dangerous precedent. Not just in regards to same sex marriage but with *any* litigation. When the state dropped its defense we were left with a philosophical dispute between the parties, not a legal dispute.

  • David Centerville, UT
    Jan. 1, 2014 9:57 a.m.

    At no point in history has a child been born without a father and a mother.

    Science can muddy the issue with invitro, whatever. You must have the sperm from a man, and an egg from a woman to have a child. There is no other way. A father and a mother.

    What is the purpose of marriage? If you exclude God from the marriage you can create any definition you want.

    There are many purposes of family, and if you exclude God from the equation you can create anything you want.

    But if you want to understand the intent and purposes of God, then the purpose of marriage is to begin a family within the laws of God. Most marriages then produce children, which is also ordained of God. I recognize that many marriages are unable to have children. But the desires of their heart are often to have children.

    We are judged on the desires of our heart, as well as our words, thoughts and actions.

    I don't speak or represent anyone other than myself.

    Included in the counsels & teachings of God is the admonition to be merciful. The LGBT community has my sympathy.

  • Ariz Madison, AL
    Jan. 1, 2014 9:55 a.m.

    The Windsor case originated from a plaintiff who lived in a state that recognized same sex marriage. So the question as to whether or not states have the authority to restrict marriage to opposite sex couples was never in play. It would have been improper for the Supreme Court to issue a ruling on that. It simply wasn't the issue in the case. The court did not establish conclusively that states do have the authority to restrict marriage to opposite sex couples. It also did not rule that the state do not have that authority. In short it is still an open question that the Supreme Court has yet to answer. Lower courts are still free to issue their own rulings as it stands today. Concluding that the Windsor decision is controlling precedent in regards to the states' power in regard to same sex marriage is flawed (on both sides).

  • Steve C. Warren WEST VALLEY CITY, UT
    Jan. 1, 2014 9:51 a.m.

    It seems to me that there were two primary ways to look at whether to grant a stay. First, a judge might grant a stay by viewing the case as unsettled law needing to be settled by the Supreme Court, or he could take the view that plaintiffs constitutional rights are being denied and that defendants (the state of Utah) have little likelihood of prevailing; therefore, a stay should not be granted. I think responsible judges could choose either option, but in this case both Judge Shelby and the appeals court seemed to give greater weight to the second. Instead of saying they chose the right or wrong option, maybe it would be better to say they chose the better or worse option.

    In any event, I see their decisions as reasonable.

  • Schnee Salt Lake City, UT
    Jan. 1, 2014 9:48 a.m.

    @Mike Richards
    Shelby used a part of the dissent that was detailing the implications of what the majority ruling would mean for this hypothetical case under their logic.

    "The fact of an inevitable reversal of his opinion"

    You're going to be in for some disappointment. The courts have done this once before when they struck down interracial marriage bans, there's a precedent.

  • Moderate Salt Lake City, UT
    Jan. 1, 2014 9:39 a.m.

    "it would be improper to void the marriages that were performed under his court order."
    I hope Justice Sonia Sotomayor directly asks the state attorneys about this. Does Utah seek to void marriages or honor them?

  • Hutterite American Fork, UT
    Jan. 1, 2014 9:37 a.m.

    Regardless of how it played out, perhaps we should take heart so many are willing to embrace marriage. This genie isn't going back in the bottle, and maybe we should work on managing it forward instead of attempting to recreate a shameful 'governor wallace in the schoolhouse door' incident.

  • Tyler D Meridian, ID
    Jan. 1, 2014 9:35 a.m.

    @RanchHand – “I often agree with you; but this is not "judicial activism".


    So if there is such a thing as judicial activism (some say not) what does it look like? Was Roe v Wade or Bush v Gore or Citizens United (pick an example) cases of activism?

    If so, how were they fundamentally different from this case?

    And you may be right and I may have this wrong, but it will take a much more robust discussion to convince me – and so far we haven’t seen it here. [If activism only means (for a conservative) liberal decisions they don’t like, or (for a liberal) conservative decisions they don’t like, then we can dismiss that conclusion out of hand as logically untenable.]

    But when a judge’s decision has the effect of creating social policy that has never been in effect before and certainly was not on the mind of the original authors of laws or amendments (the 14th), then that decision starts to take on “walks like a duck, quacks like a duck, and looks like a duck” qualities (i.e., judicial activism).

  • PolishBear Charleston, WV
    Jan. 1, 2014 9:26 a.m.

    There was NOTHING WRONG with Judge Robert Shelby's ruling. It was not his job to uphold the precise will of the majority of the people. That's what elections are for. The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level. Therefore, it is not "activism" nor oligarchy on the part of judges to declare that Gay and Straight couples should be treated equally under the law, rather it is an example of judges performing their rightful duty.

  • AllSeeingEye Salt Lake City, UT
    Jan. 1, 2014 9:16 a.m.

    The real problem Judge Shelby creates, regardless of one's views concerning the merits of the case, is that everyone knows the issue will ultimately be decided by the United States Supreme Court. Given that fact it seems foolhardy, at best, for a district court judge to require immediate implementation of his decision when it is possible a circuit court of appeals or the U.S. Supreme Court will reverse that decision. Accomplished marriages then may turn out to be illegal, and cleaning up the ensuing mess will be a nightmare for everyone involved.

  • RanchHand Huntsville, UT
    Jan. 1, 2014 8:37 a.m.

    "First, U.S. District Judge Robert Shelby was wrong ..."

    No he wasn't. The US Constitution ALREADY has the 14th Amendment and that doesn't require the SCOTUS to say that it applies to ALL American citizens, the 14th Amendment already states that.

    @Mike Richards;

    If you stood for the Constitution of the United States, you'd support equality under the law; even in marriage. Anything else and you're telling yourself lies.

    @Tyler D;

    I often agree with you; but this is not "judicial activism". This is a perfect example of the judiciary doing it's constitutionally mandated job.

  • 10CC Bountiful, UT
    Jan. 1, 2014 8:30 a.m.

    There's another precedent for both a small number of people deciding public policy, and for states rights being used as the excuse to delay implementation of policy:

    Brown vs Board of Education, in 1954, where the Supreme Court decided that "separate but equal" was not equal, and segregated schools in Arkansas were integrated, in a highly emotional atmosphere, by force, with National Guard troops protecting the African American school children who were the first to cross the racial barrier in education.

    Naturally, the states rights advocates throughout the South resisted this decision and its implications, and in 1963, by wife was still attending segregated schools in Kentucky. "What happened in Arkansas is a problem for Arkansas, not Kentucky".

    So, this type of foot-dragging is certainly not new.

  • J Thompson SPRINGVILLE, UT
    Jan. 1, 2014 8:21 a.m.

    If another federal judge had overruled Roe v Wade using the dissent opinion, 55,000,000 unborn babies would not have been aborted in the United States. That would have been the right outcome, but the wrong process. The Supreme Court ruled that a woman has the right to have the life within her destroyed. The Supreme Court ruled that a doctor who has taken an oath to preserve life has the right, when asked by that woman, to take life. As abhorrent as that decision was, it became the law of the land. Our creator will deal with everyone involved. He will not rely on the dissent opinion as the basis for His judgement.

    We are a nation governed by law, starting and ending with the Supreme Law of the Land. That document forbids anyone except Congress to pass laws that are binding on the nation. That document does not allow any judge to legislate from the bench.

    The "end" does not justify the "means". Justice may be delayed but it will not be denied. No judge will escape the final "verdict".

  • procuradorfiscal Tooele, UT
    Jan. 1, 2014 8:08 a.m.

    Re: "The claim could be made that even if his decision is overturned . . . it would be improper to void the marriages that were performed under his court order."

    It could, and probably will be made, but, in the end, will be discarded.

    Since the sole issue is validity of Amendment 3, when the Supreme Court upholds it -- as it has telegraphed it will in EVERY recent case -- no logic or reasoning could make marriages performed in violation of it valid.

    The fact of an inevitable reversal of his opinion is the primary reason Shelby should have curbed his agenda-driven activism, at least to the extent necessary to avoid the hurt created by his wholly unsupportable decision.

    A thousand, or so, Utahns will have hopes unnecessarily crushed, and state and Nation will be engaged in expensive and unnecessary litigation, vis-s-vis their, and their families' legal status under any number of liberal giveaway statutes, for years to come.

    Of course, it's hard to believe that wasn't Shelby's intent all along.

    And, BTW, Prof -- kudos for the reasoning evident in the rest of your op-ed.

  • Tyler D Meridian, ID
    Jan. 1, 2014 8:05 a.m.

    This is what judicial activism looks like folks – and it is an equal opportunity offender as Mr. Davis cogently points out (e.g., a conservative judge declaring life begins at conception).

    We either live in a republic or we do not. We either have the right of self-government or not. States are either laboratories of democracy (within constitutional limits) or they are not.

    When judges exert this amount of power all of these are threatened.

    All that said – the faster society sheds it religious bigotry against gay people and stops treating them as 2nd class genetic malfunctions that need to be cured, the better. They are people whose sexual orientation is about as interesting as being left-handed, and should have about the same level of concern for any heterosexual.

    There is nothing wrong with them and they don’t need to be fixed (anachronistic Bronze Age books written by shepherds notwithstanding).

  • Mike Richards South Jordan, Utah
    Jan. 1, 2014 6:53 a.m.

    When I was a boy, I delivered newspapers for the Deseret News. On its masthead were the words, "We stand for the Constitution of the United States". There is no evidence that the Deseret News still stands for the Constitution of the United States. Mr. Davis' second paragraph stated that Judge Shelby used the Court's dissent opinion as the basis for his judgement and then went on to compare Shelby's decision to a federal judge overturning Roe v Wade, based on the Court's dissent opinion. Mr. Davis then told us that Shelby was an activist judge who legislated from the bench.

    Where was the demand to do something about that travesty? Is "hand-wringing" enough? Should the masthead now read, "You better not violate the Constitution or we will wring our hands!"?

    When a judge knowingly uses the dissent as the basis for his opinion and then acts as a legislator, his "legislation" is illegal and therefore void. The results of that "legislation" is also void.

    It's time that the Desert News remember that the 4th Estate has a duty to fulfill and "hand-wringing" is not that duty.

  • LiberalEastCoastMember Parkesburg, PA
    Jan. 1, 2014 5:15 a.m.

    "In an age when too many people discount marriage through simply living together or opt too hastily for divorce, perhaps we should be heartened to see so many people embracing the institution of marriage."

    Yes, yes, yes! It was right there before our eyes the entire time. Why did it take so long for many of us to see the obvious?

  • AlpineBob Eltopia, WA
    Dec. 31, 2013 4:03 p.m.

    Hmm....Deseret's hand wringing seems to be slowing down a bit. Good for you.