Federal appeals court strikes down Utah’s gay-marriage ban

posted at 6:01 pm on June 25, 2014 by Allahpundit

Via Gabe Malor, an Indiana district court judge also struck down that state’s gay-marriage ban today, but the Utah ruling’s more important because it comes from an appellate court. In fact, this is the first ruling on SSM from any federal court of appeals since SCOTUS’s Windsor ruling last year. In that case, the Court held that if a state legalized gay marriage then the part of DOMA that denied federal benefits to gay spouses married under that state’s laws was unconstitutional. You could, if you like, read that as a federalism decision: The Court was simply saying that states get to set the rules for marriage, not the feds, and when a state decides that gay couples can marry, the feds can’t constitutionally override that decision.

Scalia, though, called BS on that reasoning in his dissent. The way lower courts will interpret the Supreme Court’s decision, he insisted, is that it’s unconstitutional for any government, federal or state, to deny gays the right to marry. Federalism has nothing do with it. After all, the Court’s reasoning was grounded in language about equal protection and due process. Those rights stem from the Constitution itself, not from some state legislature deciding to bestow them. That was the question that the appellate court in Utah faced today: Is there any argument by which the states should be allowed to deny gays the right to marry even though the feds are constitutionally bound to recognize those unions if a state does?

Answer: Nope. Here’s the 10th Circuit, confirming Scalia’s worst suspicions about the true takeaway from Windsor:

w1w2

This is about dignity, equality, and (substantive) due process, not federalism. If the Fifth Amendment won’t let the federal government trump those rights as they apply to gay marriage, why on earth would the Fourteenth Amendment let a state do it?

Gabe flags this bit from later in the opinion too:

w3

If federalism and the Bill of Rights conflict (even though they’re both designed, ideally, to preserve liberty), the Bill of Rights trumps. Scalia knew that, and so, of course, did Kennedy. But rather than write a clean, straightforward opinion for the Court in Windsor and rule that gay-marriage bans violate equal protection, he decided to take an indirect route by suggesting that state legislatures might play a role in this too. He realized that lower courts would use his opinion to strike down gay-marriage bans, though, and he also realized that by the time this issue makes its way back to SCOTUS, there’ll now be enough lower-court precedents siding with him that he can point to them in his next ruling as persuasive. Essentially, he created the unstoppable judicial momentum for legalizing SSM and soon he’ll use that momentum to justify taking the final step, a landmark Supreme Court ruling striking down state gay-marriage bans. After today, he’s right on track.


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Comment pages: 1 3 4 5

Loving v. Virginia.

Now, the real problem is with photographers and bakers, methinks, and arguments of denied freedom of religion and forced involuntary servitude — both of which the Supreme Court has implicitly endorsed.

unclesmrgol on June 28, 2014 at 12:07 PM

I’m a wedding photographer (at times)

If someone wants to give me three grand to shoot a wedding, by all means

I look at it this way – if I was to decline service to, say, canadians.. I’d take crap for it! And rightly so.

If you offer a service, you offer it to everyone. If you can’t shoot a wedding because you’re too bigoted to shoot anything but a full church christian evangelical wedding, maybe this isn’t the profession for you – you will see ALL TYPES of people.

triple on June 29, 2014 at 5:40 PM

I mean does that logic apply to baristas? Imagine if gay people couldn’t get a cup of joe because the barista had religious objections to their homosexuality. Imagine if doctors wouldn’t treat gay people because the doc was a hardcore christian.

You can’t just discriminate against people because of your beliefs. Your beliefs are your beliefs, but that doesn’t mean you get to just pretend other people with totally different beliefs don’t deserve the same basic services you enjoy. That’s the mindset of a five year old.

triple on June 29, 2014 at 5:42 PM

Well, THAT was a colossal waste of time. You’re still avoiding any discussion of the definition of marriage while proclaiming the longstanding definition is purely arbitrary.

There Goes the Neighborhood on June 28, 2014 at 5:43 PM

.
Because it is. The state, which created civil marriage, can define civil marriage however it likes, ergo the definition is arbitrary. The parts of that definition might have stayed consistent for long periods of time, but that does not make them any less arbitrary. I’m surprised that so many people are surprised to hear this, and that it’s so difficult to comprehend.

alchemist19 on June 29, 2014 at 3:23 PM

.
ALL … “parts of that definition” … have have been unaltered, since the beginning of time, until the “to-hell-with-public-recognition-of God” movement in the 1970s.

Man’s “governments” are incapable of creating or ordaining anything. They can only try to redefine (or ‘pervert’, v.) what has already been created/established/ordained by the living God.

In fact, God created what you recognize as the “civil authorities”.

[Rom 13:1-7]

But Rom 13:1-7 has to be interpreted as not contradicting Acts 4:13-20.

listens2glenn on June 29, 2014 at 10:52 PM

Loving v. Virginia.

Now, the real problem is with photographers and bakers, methinks, and arguments of denied freedom of religion and forced involuntary servitude — both of which the Supreme Court has implicitly endorsed.

unclesmrgol on June 28, 2014 at 12:07 PM

.
I’m a wedding photographer (at times)

If someone wants to give me three grand to shoot a wedding, by all means

I look at it this way – if I was to decline service to, say, canadians.. I’d take crap for it! And rightly so.

If you offer a service, you offer it to everyone. If you can’t shoot a wedding because you’re too bigoted to shoot anything but a full church christian evangelical wedding, maybe this isn’t the profession for you – you will see ALL TYPES of people.

triple on June 29, 2014 at 5:40 PM

… continued …

I mean does that logic apply to baristas? Imagine if gay people couldn’t get a cup of joe because the barista had religious objections to their homosexuality. Imagine if doctors wouldn’t treat gay people because the doc was a hardcore christian.

You can’t just discriminate against people because of your beliefs. Your beliefs are your beliefs, but that doesn’t mean you get to just pretend other people with totally different beliefs don’t deserve the same basic services you enjoy. That’s the mindset of a five year old.

triple on June 29, 2014 at 5:42 PM

.
Being willing to serve homosexuals in any way THAT DOES NOT CONDONE HOMOSEXUALITY is not a problem, whether it’s “baristas” selling coffee or anything else, auto-mechanics, plumbers, electricians, the cable guy (or gal), the phone repair technician, pizza parlor, doctors, etc.
(there may be a possible exception for doctors, as pertains to ‘hamster removal’ … will require further pondering)
.
The providing of services that aid and abet a “same sex marriage” … is condoning homosexuality … period.

listens2glenn on June 29, 2014 at 11:43 PM

Comment pages: 1 3 4 5