First Phil Robertson gets suspended, then the New Mexico Supreme Court declares that state’s ban on SSM unconstitutional, now this.
Good lord. It’s the gayest week ever.
Judge Shelby said the state had failed to show that allowing same-sex marriages would affect opposite-sex marriages in any way, and that the state’s unsupported fears and speculations were not sufficient to justify barring same-sex marriages.
Lawyers for the state had argued that Utah’s law promoted the state’s interest in “responsible procreation” and the “optimal mode of child-rearing.” The lawsuit was brought by three gay and lesbian couples in Utah.
Many similar court challenges are pending in other states, but Utah’s has been closely watched because of the state’s history of staunch opposition to same-sex marriage as the home of the Church of Jesus Christ of Latter-day Saints.
Here’s the opinion. The basic conclusion is the same as it was in the New Mexico case, which itself was the same as in every other pro-SSM ruling: The state just doesn’t have a good reason to discriminate. You can’t win by arguing that marriage is designed for procreation if it’s open to straight couples who can’t procreate. You can’t win by arguing that gays marrying will discourage straights from marrying and raising children without showing real evidence to that effect. (It’s easier for social conservatives to argue that gay marriage is a symptom of the decline of the institution than the cause of it. Gays didn’t make divorce rates and the numbers on out-of-wedlock births what they are.) You can’t win by arguing “it’s tradition” when other old discriminatory traditions, like interracial marriage bans, have been overturned by courts with most of the public’s approval. The threshold question — why should a person be legally barred from doing something that doesn’t seem to hurt anyone else? — is never really answered. (Liberals have trouble with that concept too, of course.) That question gets complicated in cases where gay couples demand that a Christan baker or photographer work their wedding despite the business owner’s religious objection to gay marriage — which, as Gabe Malor points out, is yet another reason to prefer that this subject be handled by legislatures, not courts. But that’s something that can be addressed in antidiscrimination law with religious exemptions. A judge isn’t going to uphold a total ban on gay couples marrying because a few of them might harass business owners with obnoxious “cater my wedding or else” threats.
Here’s the court’s conclusion:
Pretty standard. So what’s different between this and the New Mexico decision yesterday? A few things. One: The New Mexico decision was issued by the state supreme court based on its reading of the state constitution. That’s not appealable to the U.S. Supreme Court. The Utah case, issued by a federal district court, is. Two: The New Mexico court found that the state’s marriage laws violated gays’ right to equal protection. The federal judge in the Utah court went a step beyond that, finding not just an equal protection violation but a violation of due process too. Everyone has a right to marry under the Constitution, he says, and no, granting a gay man the right to marry a woman for whom he feels nothing romantically isn’t enough. What good is having a right that’s deliberately circumscribed in a way to leave you with no desire to exercise it? It’s like telling gun owners they have the right to bear arms so long as those guns aren’t capable of firing live ammunition.
Not every court takes up the due process argument, partly because they feel they don’t need to (the equal protection argument is easy enough) and partly because it gets them into abstract arguments about the scope of the right to marriage. Is “gay marriage” a different right, or is it the same ol’ right everyone’s always had except exercised by gays? Many judges don’t bother. This one did.
Three: Look back at the New Mexico opinion and you’ll find the court explaining why gays, as a group, should enjoy “suspect class” status as a politically disadvantaged minority for equal protection purposes, which means courts should be extra skeptical about laws that discriminate against them. The Utah district court judge doesn’t make that move, probably because he knows the Supreme Court is verrrry reluctant to expand the universe of suspect classifications under the Fourteenth Amendment to include sexual orientation. That would be a landmark ruling and would have huge implications for antidiscrimination laws across the country. This judge felt bound to follow existing precedent on that and ignored the question of whether gays are a “suspect class.” Instead he applied the lowest level of equal protection scrutiny, i.e. “rational basis review,” in which a law is valid and constitutional so long as it bears some rational relation to the objective the state wanted to achieve by passing it. But that brings us back to the beginning: There is no rational relation, the court says, between promoting marriage and excluding gays from the practice. There’s simply no evidence that the latter helps you with the former. Even as a matter of rational-basis review, it just doesn’t fly.
One more thing, via Mediaite. Here’s the judge having some fun with Antonin Scalia, who of course dissented in the SCOTUS case earlier this year striking down DOMA:
He’s mocking Scalia, basically, by citing him in an opinion to reach a result he knows Scalia would oppose, but the DOMA ruling is what it is. Scalia was right — once the Supremes ruled that DOMA was unconstitutional because it limited certain benefits to straights, it was a fait accompli that federal judges would extend that principle to state marriage laws too. I doubt Scalia’s mood upon reading that will be embarrassment so much as “told ya.”
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