Utah has marriage equality!!! Number 18! (Short Version)

Hello Dear Readers! Welcome to The Spencer Hamilton Blog!

Today I showed my love for Utahns because I spent most of my day: Searching for news of the ruling in hope that they’d give me the case name so I could take a look at the ruling. Then I read the ruling and took notes. I condensed  53 pages to 11 pages (Long version) to 5 (short version) so if you don’t at least like, comment or share, I’ll reach through this screen like Ghost Dad and  give you a good wallop! Lol.

Well this has been a labor of love and now that I’m done scaring off any new subscribers and/or readers of my blog, I’m going to get into the news!

So UT has become number 18…so far. We say that because of the fact that Judge Robert Shelby hasn’t issued a stay on the opinion that was sought by UT. Apparently a lot of people are of two opinions: One is that he’s an activist judge (he is an Obama appointee) and 2. He did the right thing. But no matter what you think about the ruling (I am ecstatic as I thought UT like MS would be one of those that the Supreme Court would have to kick and drag into the 20^th century let alone the 21^st for crying out loud they still think the Civil War just ended 5 years ago) when you read it, IF you have the fortunate pleasure to be able to stomach it all. Or you might wanna watch my video since I’ll break it down

Three couples filed suit in federal court to declare Amendment 3 passed with 66% of the vote in 2004 unconstitutional and their reasons are:

       I.            Baehr v Miike HI State Supreme Court said that the government had produced no proof that denying gay and lesbian couples a license protected a government interest

    II.            In 1996, Congress passed DOMA Section 2 said that states would decide for themselves if they would allow same sex marriages but Section 3 said that the federal definition of marriage for any such purposes under federal law meant man and woman as husband and wife

 III.            In 1999, the Vermont Supreme Court required the state to offer ALL the benefits of marriage to same-sex couples in Baker v. Vermont

 IV.            In 2003, Lawrence v Texas said that sodomy (often defined as mouth to penis or vagina and penis to anus but mostly applied to anal sex between men) and laws that targeted gay people as sodomy is often connected to gay sexual expression were unconstitutional. TX law Homosexual conduct law was in question

    V.            In 2003, The Massachusetts Supreme Judicial Court issued the Goodridge decision overturned a state statute that said that marriage is between a man and a woman. This created a flurry because people knew that folks would go to MA and go back to their states and fight through the courts to get marriage legalized there. Which was addressed by Sec 2 of DOMA

 

Now UT had two statutes before that said that marriage between a man and a woman is the law and explicitly stated that marriage between gay and lesbian couples are void and prohibited. But apparently, they sought some extra cushion in the event the statute might be challenged, yet they all brought it down in one fell swoop.

First, he establishes the The standard of review as rational basis as sexual orientation is not a suspect class. Judge Shelby argues that neither the 10^th Circuit nor the Supreme Court has established sexual orientation as s suspect class.

Next, he talks about the Effect of the Windsor case and it’s not the 10^th Amendment that delegates certain powers to states that Windsor was decided on but Due Process and the same claim is being disputed here in regards to their marriage Amendment, Amendment 3

UT argued that Baker v. Nelson is controlling Precedent as a lot of conservatives would like us to believe but the Morse v Republican Party case said that a summary dismissal is a slender reed on which to base future decisions and therefore more evidence has to be taken into account. Since other developments such as Lawrence which struck down sodomy laws and Romer which struck down a CO Amendment to ITS constitution saying that no government branch can pass laws or policies that would protect based on sexual orientation. That along with the Windsor case, also undermine any thought of Baker v Nelson. Baker is a case that happened in 1971 when the MN Sup Ct said that marriage as a matter between a man and a woman didn’t violate the 14^th Amendment and the US Supreme Court dismissed it “for want of substantial federal question” while it had never dealt with that issue prior I guess it just said: What federal question is it asking us to resolve? Is there even one?

UT’s Arguments

(1) the Plaintiffs are not qualified to enter into a marriage relationship;

(2) the Plaintiffs are seeking a new right, not access to an existing right; and

(3) history and tradition have not recognized a right to marry a person of the same sex. The court addresses each of these arguments in turn.

(1) the Plaintiffs are not qualified to enter into a marriage relationship;

Court’s finding: . The Plaintiffs Are Qualified to Marry

The state says that they are not qualified to marry but only want the feelings associated with marriage. However, one of the Plaintiff’s biography before the Court she was denied Social Security benefits when her partner died. Also, one couple ahs been married in IA but it’s not recognized in UT.

In regard to the procreative aspect of their argument, the Court says: Post-Menopausal women can marry and couples who have no intention of marrying also have he ability. Also, The Supreme Court has said that Deadbeat Dads can marry, prisoners, interracial couples, all can marry. It is only important as a religious matter, but not in a civil marriage. Procreation has never been a reason to annul a marriage

 

(2) the Plaintiffs are seeking a new right, not access to an existing right

COURT: The Plaintiffs Seek Access to an Existing Right

Judge Shelby says that asserting that the couples have the right to marry someone of the opposite sex is useless to them, as that right is not the right in question. The Supreme Court has called marriage the most important decision of your adult life so saying that adults can’t make that decision who would otherwise qualify but for gender/sex, is laughable. Also, the right to marry is deeply rooted in our nation’s history and courts have recognized the right to marry the person of their choice (Loving case) and that the state has no reason to infringe on that right in respect to these couples. It is not a question of saying: Is there a right for Deadbeat Dads to marry or Interracial Couples to marry, it is simply: Does the right to marry EXTEND to deadbeat dads and interracial couples. It is a right that is recognized not a new right created.

(3) History and tradition have not recognized a right to marry a person of the same sex. The court addresses each of these arguments in turn.

       
COURT: Tradition and History Are Insufficient Reasons to Deny Fundamental Rights to an Individual.

There are a lot of traditions we’ve invalidated. Slavery, arranged marriages, polygamy…just to name a few. Dowries, coverture which made a woman a legal nonentity upon marriage. We’ve stopped a lot of things and instituted new things that were radical departures from “tradition” as Eddie Murphy as Prince Hakeem said “It is tradition that tradition must change” Such a progressive thought as a Prince of Zmunda (Coming to America was and remainds his greatest movie alongside Trading Places)

Also, he uses this quote from Lawrence regarding the Due Process Claims which comes from Justice Kennedy (who assholishly voted with the majority in Shelby v Holder…but I digress)

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

He uses this to make a case that it is not the Constitution that has changed but the knowledge of what it means to be gay or lesbian. The court can’t ignore the facts that Plaintiffs are in a committed relationship and want to wed. The Court and the State must adapt to this changed understanding

Now, getting to the meat of the case the Amendment 3 can’t survive the 14^th Amendment because it sections off all gay and lesbian Utahns without any rational reason related to governmental interests as stated above. Straight couples will continue raising kids, and loving them, kids will still be adopted into families in Utah like they have been and same sex couples will still continue to do the same with their kids also. Further, on the optimal child rearing argument this Amendment demeans children growing up in gay and lesbian households AND gay and lesbian children will grow up with the knowledge that UT believes that they aren’t as capable of creating a family as their heterosexual friends are (p.46)

Proceeding with Caution

Palmore v Sidoti in 1984 was a FL case where Mr. Sidoti wanted Mrs. Palmore, his ex-wife to give him full custody of their daughter because Mrs. Palmore’s current husband is black. The state of FL gave Mr. Sidoti custody even though Mr. Palmore was a fine example of a Father for their daughter. The Supreme Court said no! This will not happen; Societal stigma isn’t a reason to deny custody. FL wanted to proceed with caution but even then they had no evidence that Mr. Palmore was a negative influence on her life, EVEN IF SHE GOT MADE FUN OF FOR HAVING A BLACK STEPFATHER! The Court doesn’t cite this case but I had to slip it in there because the court calls that argument toothless and no evidence to support its claim

Preserving the Traditional Definition of Marriage

Page 48 states the following: “Williams v. Illinois, 399 U.S. 235, 239 (1970) (“[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack

The argument of “We simply just don’t know” yet trying to find actual justifications for Amendment 3 was probably more like a Cluster Screw when cross examining what exactly the Amendment does. Judge Shelby says the following “And, as Justice Scalia has noted in dissent of Lawrence v. Texas ”preserving the traditional institution of marriage’” is just a kinder way of describing the State’s moral disapproval of same-sex couples.” (also p.48)

On that note as well, not all the people and churches of UT morally disapprove of same sex couples. Judge Shelby notes that

“By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.”

Page 49

He finally summarizes UT’s case: There isn’t one. How will gays and lesbians getting married hurt opposite sex couples? We simply don’t know but let Amendment 3 stand anyway because we don’t want to know. Somehow, out of the sky you have to sit there and just say: UT Legislature can propose a rational reason to uphold Amendment 3. Judge Shelby would have none of that. Amendment 3 Judge Shelby says discriminates based on sexual orientation and fails even rational basis review, the Court finds that Utah’s prohibition on same sex marriage violates the Plaintiff’s right to equal protection under the law .

Page 52

“Moreover, the Constitution protects the Plaintiffs’ fundamental rights, which include the right to marry and the right to have that marriage recognized by their government. These rights would be meaningless if the Constitution did not also prevent the government from interfering with the intensely personal choices an individual makes when that person decides to make a solemn commitment to another human being. The Constitution therefore protects the choice of one’s partner for all citizens, regardless of their sexual identity.”

Therefore, the Court ordered that the state enjoins enforcement (stops it) of UT Amendment 3 as well as the statutes that barred recognition of same sex marriages. Couples went out and got legally married in UT, we don’t know how long that will last because the 10^th Circuit would have to put a stay on the ruling pending appeal. However, for now if you’ve been waiting a long time and want to get married I would suggest you go and get that license. I’m sure that a lot of pictures being posted on Facebook and lots of Kleenex as the day many couples have waited for hits UT.

Number 18! Also, this becomes the first state Constitutional amendment to actually be ruled unconstitutional on its merits. There’s a poetic justice to this: The state that funneled all that money into Proposition 8 to get it passed the state that put all that money into the defense of Prop 8 and they lost at home! The appeals process will most likely be followed as Governor Herbert slammed the ruling saying that "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," Of course they didn’t say anything like that when NV and HI marriage bans were upheld, neither IN, WI, or any other state. Of course, it’s only an activist judge when you don’t like the ruling.

Some parting words from Peggy Tomsic, the attorney who represents the three couples, applauded Shelby's courage in making the ruling.

"We cannot capture in words the gratitude and joy plaintiffs feel," Tomsic said in a statement.

But she warned that the legal fight was not over.

During this month's hearing, Tomsic contended marriage is a fundamental right protected by the U.S. Constitution. She said the case embodies the civil rights movement of our time, saying discrimination has gone on long enough.

 

She said Utah's law, which passed with two-thirds of the vote, is "based on prejudice and bias that is religiously grounded in this state." Hence, why I was so surprised—but at least I’m pleasantly surprised—for now anyway

Until next time!