Federal judge strikes Utah’s marriage ban
A federal judge in Utah just issued a decision striking down that state’s ban on same-sex marriage.
Obama appointee Judge Robert Shelby issued a 53-page decision, in Kitchen v. Herbert, saying the state’s current definition of marriage is not permissible under the U.S. Constitution.
Noting that a court interferes with a law adopted by voters “only under exceptional circumstances,” Shelby said, “Utah’s prohibition on same- sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law.”
“The State’s current laws deny its gay and lesbian citizens their fundamental right to marry,” wrote Shelby, “and, in so doing, demean the dignity of these same-sex couples for no rational reason.”
Shelby’s order immediately enjoined the state from enforcing its ban, but Republican Governor Gary Herbert’s administration will almost certainly seek an emergency stay of the decision from the 10th Circuit U.S. Court of Appeals.
In a brief statement issued Friday evening, Herbert said only, “I am very disappointed an activist federal judge is attempting to override the will of the people of Utah. I am working with my legal counsel and the acting Attorney General to determine the best course to defend traditional marriage within the borders of Utah.”
It is, nevertheless, yet another surge of momentum in the direction of marriage equality in the United States, coming just one day after the New Mexico Supreme Court said that state could no longer interpret its marriage laws to exclude same-sex couples. That decision made New Mexico the 17 state in the country, plus the District of Columbia, to provide marriage equality and putting more than one-third of states and one-third of the nation’s population in jurisdictions that treat same-sex couples the same as straight couples.
Shannon Minter, legal director for the National Center for Lesbian Rights, called the decision “a huge win.”
“This is the first decision since the Supreme Court’s decision striking down the federal Defense of Marriage Act to overturn a state marriage ban under the federal constitution,” said Minter. “To have such a historic ruling take place in Utah speaks volumes about our country’s trajectory from discrimination to acceptance and support for same-sex couples and their families. We owe an enormous debt of gratitude to the brave couples who brought this case, as well as to the superb attorney, Peggy Tomsic, who represented them.”
The ruling is that “Utah’s prohibition on same- sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law.”
If only SCOTUS saw it the same way when the Prop 8 case was heard. Some of the dissenting justices wanted to proceed precisely on those issues but, alas, it adopted the rather gutless position argued by the White House.
I was not surprised when SCOTUS chickened-out on this issue but I was especially infuriated Obama’s White House brief took a line of argument that was openly mocked and ridiculed by some of the justices during oral arguments. Was *anybody* listening?!
Remember now, the White House only argued that where a state enacted a civil union (or marriage-like) law but did not grant full marriage only *that* violates the 14th Amendment because it denied the citizens of the state equal protection of *its* laws.
This, of course, is what a 14th Amendment challenge is really all about: the mandate that the state apply *its* laws even handedly. Ergo, the Obama brief argued, where a state does enact any a such protection it must go all the way. All the other state gay jim crow laws banning marriage and granting no marriage-like projections remained valid. One Justice argued such a rationale would punish states that granted only some rights while rewarding states that granted none. And here we are.
At least two justices (left and right) openly mocked the dis-ingenuousness of the argument *especially* coming from the Obama camp! As one justice quipped, under this argument, the Loving court could not have struck down Virginia’s anti-miscegenation Jim Crow statue since the state had enacted no inter-racial civil union law.
Sadly, the majority agreed and effectively overturned (sub silento) only the California dynamic displayed in a few other states with civil union laws but where marriage is denied. Since Utah has no civil union law this perhaps means the matter will be right back before SCOTUS to decide the question it begged in Hollingsworth v. Perry. That’s – presuming anyone has standing to challenge the ruling. That is, since Utah does not fit that dynamic this court has taken the broader view displayed in Loving and which SCOTUS failed to follow on Hollingsworth v. Perry.
I only hope this Utah case takes us back to SCOTUS with all the proverbial feet nailed firmly to the infamous floor to repudiate Obama’s preposterous argument that threw the rationale of Loving under the bus.
There is no good reason to deny that we must keep evolving until an adult, regardless of gender, sexual orientation, monogamy or polyamory, race, or religion is free to marry any and all consenting adults. The limited same-gender freedom to marry is a great and historic step, but is NOT full marriage equality, because equality “just for some” is not equality. Let’s stand up for EVERY ADULT’S right to marry the person(s) they love. Get on the right side of history!