Monday, January 6, 2014

Gay Marriage Stopped in Utah - I'm Not Surprised.

The Supreme Court, in a unanimous decision, issued a stay of Judge Shelby’s opinion striking down Utah’s Amendment 3 (gay marriage ban). As much as members of the LGBT community are upset about this development, I’m not at all surprised. I was actually more surprised that the 10th Circuit didn't stay the decision itself.

Judge Shelby’s opinion, though good, enunciated a lot of ideas that have either been rejected by many Courts (same-sex marriage bans are discrimination on the basis of sex – which he really didn’t get too because he found the ban failed rational basis review) or are pretty weak to begin with (that same-sex couples have a “fundamental right to marry” – I don’t think that we do based upon Due Process jurisprudence). The opinions strong points – the nature of “responsible procreation” etc. – haven’t really had an opportunity to be analyzed by Circuit Courts and in many cases such reasoning by the State has been upheld by Courts around the United States. Granted, most of these unfavorable opinions were issued prior to the landmark Supreme Court case of Windsor v. United States, but I don’t personally see Windsor as a useful case to argue against state same-sex marriage bans (given its very limited focus and federalism issues).  Therefore, because the issues in Judge Shelby’s opinion were rather revolutionary in the Court system, it SHOULD HAVE been stayed by the 10th Circuit. Granted, the State of Utah botched the stay request, and its briefs to the 10th Circuit were laughable, but that doesn't hide the fact that the Court should have granted said stay.

Regardless, I want to take this opportunity to remind my readers that the Supreme Court had an opportunity to deal with marriage equality on a nationwide scale last year in the Prop 8 case. But they punted, instead deciding to issue an opinion based on standing issues. Read into that what you will (I have, and I read that Kennedy isn't ready to legalize marriage nationwide), but that fact must be remembered. 

So now what we have is a case being appealed in the 10th Circuit (UT), one being appealed in the 9th Circuit (NV), and many going to trial this month and next around the country. 2014 will be a fun year!

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