So, as much as it kills me (and it does cause me physical pain) I’m going to throw in my two cents on this whole gay marriage thing that is happening in Utah.
If you don’t know, or if you have been living under a rock, on December 20, 2013 U.S. District Judge Robert Shelby ruled that the Utah state ban on gay marriage violated the U.S. Constitution.
If you’re new here (you may be the seventh person to find this) I have already brilliantly written my take on gay marriage before, you can find it here.
I’ll try to keep this fresh.
Our founding fathers were obsessed with the separation of powers. They didn’t want the federal government to grow out of control, and so they set up checks and balances. They did recognize there were certain things the federal government needed to be in charge of: making money, immigration, declaring war, you know…stuff like that. To help ensure the restriction on the growth of the federal government they gave us the 10th amendment. It reads:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In other words, any issue not specifically mentioned in the Constitution for the federal government to have dominion over (for lack of a better word) is up to the states to decide.
Let me illustrate an example of the federal government overreaching its authority. Let’s say there is a small, random state of roughly 3 million people. The people of the state don’t want to have fluoride added to the water. They don’t care if other states put fluoride in theirs, it just isn’t for them. They vote and add it to their states constitution that they are a “No fluoride in the water” state. Sixty-six percent of the voters come out in favor of this resolution. BUT…there are a few dentists in the state who disagree with the will of the people. “How can the state not want fluoride?” they argue. “There is no evidence that it hurts anyone.” So they sue, and find a federal judge who interprets the “everlasting gobstopper clause” of the US constitution as saying the will of the people is wrong. And so the state district attorney immediately starts pouring fluoride in drinking water.
That is exactly what happened with gay marriage in Utah.
“But Danny,” you whine, “not everyone is Utah voted on that amendment, what about the will of the people who didn’t vote?” This is going to sound super harsh to my butt-hurt liberal friends, but if they didn’t vote, their opinion doesn’t mean squat.
Quick side note: Is it just me, or does “LGBT” sounds too much like a sandwich?
“But Danny,” you whine even louder, “didn’t the Supreme Court knock down DOMA, thus opening the door to this kind of thing?” (DOMA is the “Defense of Marriage Act – signed by Bill Clinton which defined marriage as between a man and a woman). Hmmm….not really. Basically the repeal of DOMA showed that the Supreme Court recognized that defining marriage wasn’t the federal government’s place, that put definition of marriage back to the state.
And later, the same year part of DOMA was repealed, Shelby, the judge from a lower court, said the state couldn’t define it either.
I’ve read quite of bit about gay marriage. I’ve read the arguments for, and I’ve read the arguments against. I’ve even read articles where the writer uses copious amounts of inordinately profuse, abstruse, and perplexing vocabulary. When reading these articles I always think, “Whatever, dude, what-ev-er (or dudette if you are one.)” In my mind very few people get it, on either side of the issue.
It’s sad. There are faces involved. The roughly 1,400 same-sex couples who were married in Utah are in limbo. Are they married or not? These people are being used as pawns. I know my butt-hurt liberal friends are going to howl at that phrase, but it’s true. They are being used as pawns. The district attorney who authorized the county clerks to issue gay marriage license knew this was going to happen.
In my little brain the real issue here isn’t gay marriage. That is just the face of it. The real issue is States’ Rights. Sadly, most people (in this case those in favor of the judges ruling on gay marriage) aren’t looking at the big picture. They either don’t get–or they don’t care–that you can’t pick up one side of a stick. They have an issue and if one activist federal judge can overrule the will of the people, to them, the end justifies the means.
To me that is wrong. Good ends should come about from good means.
Think about it. We live in a representative democracy. Generally speaking if a law is made from the elected legislators we, the people, are accepting of it. Almost all of the most decisive issues in the country are brought about judicially.
Whatever your opinion on gay marriage, for it or against it, it should be the voice of the people who decides. We don’t live in an aristocracy, where the smart people tell the stupid how to live. In the United States, judges don’t have the right, and should stop trying, to invent laws.
LIFEZILLA: Fool me once shame on you, fool me twice…you probably have boobs.
Well said Danny. The issue here really is states rights. I think the founders idea of states making these kinds of decisions almost alludes to the idea of a free market. So if one state implements a policy and it works well, or doesn’t, states who make different decisions are favored or disfavored in contrast. For example, Florida’s low taxes are bringing prosperity to Florida. The high taxed people of New York are suffering and fleeing to Florida. This “competition” in the states is a natural check and balance when it comes to government power. If the Fed would stop doing the jobs left to the states, it might actually have the money it needs to do the jobs that it is supposed to be doing, like keeping our country safe.
Of course, there are those who would say that a marriage needs to be recognized no matter what state you live in. Well, my concealed carry permit isn’t recognized in every state either.
Here’s the most interesting part of Shelby’s decision. He declares in fact that marriage IS in fact a state’s right issue. But then he says that State’s rights cannot violate the Constitution. He then proceeds to say that Utah’s amendment is a fundamental affront to people’s dignity. However, NOWHERE in the decision does he actually point to, claim, or derive his decision from a specific clause, amendment, or article of the U.S. Constitution. So here is a federal circuit judge handing judgement on an issue of constitutionality without using a single thread of the actual document. It’s really just a matter of his personal opinion. He simply disagrees (for no apparent legal reason). Don’t believe me? Read here the few short paragraphs that are his entire decision on the matter:
“The court agrees with Utah that regulation of marriage has traditionally been the province of the states, and remains so today. But any regulation adopted by a state, whether related to marriage or any other interest, must comply with the Constitution of the United States. The issue the court must address in this case is therefore not who should define marriage, but the narrow question of whether Utah’s current definition of marriage is permissible under the Constitution.
Few questions are as politically charged in the current climate. This observation is especially true where, as here, the state electorate has taken democratic action to participate in a popular referendum on this issue. It is only under exceptional circumstances that a court
interferes with such action. But the legal issues presented in this lawsuit do not depend on whether Utah’s laws were the result of its legislature or a referendum, or whether the laws passed by the widest or smallest of margins. The question presented here depends instead on the Constitution itself, and on the interpretation of that document contained in binding precedent from the Supreme Court and the Tenth Circuit Court of Appeals.
Applying the law as it is required to do, the court holds that Utah’s prohibition on samesex 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 and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.”
Believe it or not, this has become so common it’s basically the norm for judges. This persists in part because Americans refuse to actually read, take part in, or understand what their government officials are doing.
Also, for those that argue he is using the 14th Amendment which does call for “equal protection under the law”: I don’t disagree with that, however he gives no legal reasoning or circuit court case precedence to show that the Amendment is in fact a violation of equal protection. Just want to make it clear that simply picking and applying the phrase from the Constitution does not equal legitimate legal reasoning. In fact this was the main reason why Justice Sotomayor (the second most liberal justice) stayed the ruling until the SCOTUS could hear the appeal.
It may be that there is an equal protection argument here. But as a judge you can’t just cherry pick generalized concepts….
…Also Shelby does refer to many legal cases, as Danny pointed to, like DOMA decision. But there are not equal protection decisions for samesex marriage. The point I am making here is not a for or against, but rather that judiciary activism exists, and that SCOTUS needs to grow a set and make a ruling on these cases once and for all. I was very disappointed in them for passing up the opportunity to debate the merits of Prop 8 rather than just pushing it off with legal B.S. Total abdication of their responsibility.
Here! Here!
We can agree on that. SCOTUS needs to rule one way of the other. It is their job. It is the purpose a Supreme Court was created. Could not agree more, Josh! Their skirting around the real issue of Prop 8 was nauseating. These justices are revered in their fields, they are educated in these proceedings, they are respected are Justices. They have been chosen and appointed for life. Making decisions that aren’t fun to make isn’t part of the job, it is the job. Do it.
One thing I’ll admit from the beginning. I never thought that I — or anybody in Utah — would be spending so much time worrying about gay rights. Trying to follow all the technical legal gives me a headache. Trying to figure out my own position is giving me a bigger headache.
It’s better to disclose my bias up front. Like 90% of people under age 30, and 10% of the people over age 30, I’m not opposed to the government allowing gay people to be married. But I certainly understand that I live in a state where the majority of the voting citizens disagree with me. This leads us into the ever present contentious legal quagmire, so heaven us–or at least the Supreme Court.
Danny argues that the founding fathers were terrified of the vast power of the federal government and that the power of the federal government was explicitly limited under the US Constitution. As usual, Danny is about half right. He attempts to sanctify his argument by quoting President Reagan, I like to call him “Dutch,” who said that “government’s first duty is to protect the people, not run their lives.” But Danny I whine, that’s the catch. President Reagan, and Judge Shelby in the Utah case giving gays the right to marry, and the founding fathers of the US Constitution, weren’t just concerned about the power of the federal government. They were concerned about all government imposing its rules upon, or taking away the rights of, the people. Did you catch that little inconsistency? Isn’t it ironic how that statement works both ways?
Judge Shelby tried to apply the US Constitution to the Utah law banning gay marriage and this is what he found: First, he decided that picking out who you want to marry is an important right, so important in fact that he found it is a fundamental part of a person’s liberty. Second, the judge found that personal liberties cannot be taken away by either the federal or state government under the 14th amendment, unless the government gives a very good reason for doing so. Third, there was only one non-ridiculous reason the state could give for banning gay marriage – that it is morally wrong (which come to think of it, is a good reason for the government to prohibit something) In this case, Judge Shelby pointed out that the Supreme Court ruled ten years ago that government has no right to make that moral judgment about gays, when it ruled Texas could not make gay sex a crime.
Today, an Oklahoma federal court has followed the Utah court, and no doubt both cases will be appealed to the next appellate level, and then to the Supreme Court for ultimate disposition. My guess is the Supreme Court will dodge the issue, and defer making any ruling for a few years, because of the 5-4 DOMA split. For me, this is the bigger issue. Where much is given, much is required. Don’t take the job, if you aren’t ready to make the hard calls. Don’t accept a position on the Supreme Court, in a nation that set the precedence for the free world if you are afraid to be unpopular. Do your job.
Then again, if the Supreme Court puts off the decision long enough, deciding gay marriage could be easy. Why? Because we will all have killed each over defending our views on it. Maybe they are brighter than I thought.
I’m speechless that this is on the docket for UT of all places.
Could CANNABIS legalization be on the horizon?
I strongly doubt any gay couple wanting to get married will force any church into marrying them. Why would they? There are plenty of secular avenues to get married by 5a8 . As for your opinion on what you think of gay people, that s your opinion. Keep it to yourself.