THE DEBATE:  GAY MARRIAGE AND THE LAW

Note:

The following is a unique post.  It contains two different essays.  The first essay is written by the husband (John Marsh) of one of Rational Faiths’ permabloggers and  is in support of the recent court ruling in Utah allowing gay marriage.  The second is an essay written by Rational Faiths’ permablogger, Corbin Volluz, and argues in opposition to the recent court ruling. Enjoy and please leave a comment.

Liberty and Justice for All

by John Marsh

 

Judge Robert Shelby’s landmark ruling in favor of three gay and lesbian couples by declaring Utah’s Amendment 3 unconstitutional was correct in its interpretation of the law and rightly moves our country forwards towards greater equality and liberty.

Marriage as an institution has continually changed throughout recorded human history. It was typically used as a means of transferring wealth, creating alliances between two groups, involved polygamous relationships, was not based in romantic love but rather arranged by parents and generally did not involve the church until the 13th century or the state until the 17th century.

As such, the idea of “traditional marriage” needs to be understood as a much more recent development, created in the popular imagination during the last century. Women were expected to be in the kitchen, subservient to their husbands with the men as lords over their households.

Within the last half century, “traditional marriage” has undergone a series of radical shifts, with racial and gender equality norms becoming codified in federal and state law. In 1965 the Supreme Court overturned laws prohibiting married couples from using contraception. Two years later interracial marriage was legalized. Married women were unable to obtain credit in their own name until 1975. Marital rape was legal in various states until 1993. As such, “traditional marriage” looks very different in 2013 than it does in 1963.

Traditional marriage in 1967 before more meddling activist judges

During this time, growing legal and societal recognition of LGBT citizens has evolved in tandem with shifts in our marriage laws. The legal recognition of gays and lesbians as increased as the law, and society in general, has come to view homosexuality as a normal facet of the human condition.

The most prominent example of the intersection of LGBT rights and marriage law is the enacting of the Defense of Marriage Act (DOMA) in 1996 and the Supreme Court ruling overturning that law in 2013.

The most telling moment of how society’s views shifted over time was during the oral arguments of the case. The following exchange occurred between Justice Elena Kagan and the lawyer defending DOMA, Paul Clement:

JUSTICE KAGAN: Well, is what happened in 1996 — and I’m going to quote from the House Report here — is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

Is that what happened in 1996?

MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute.

The intent of the law was to “express moral disapproval of homosexuality.” As such, many other states, including Utah, have gone to great lengths to pass anti-gay marriage legislation with the same intent.

Judge Shelby’s ruling striking down Utah’s ban on same-sex marriage is the logical extension of acknowledging the rights of all citizens to marry. His ruling comes on the heels of Judge Clark Waddoups ruling striking down Utah’s anti-polygamy law and is also based in the same logic that adults should be able to marry the adult partner(s) of their choosing without having the state pass moral judgement on their relationship.

An excellent summary of the rationale that Judge Shelby used in reaching his decision from SCOTUSBlog:

“Along the way toward his ultimate conclusion, Judge Shelby ruled that the issue of state authority to outlaw same-sex marriage is no longer controlled by a one-line 1972 Supreme Court decision in a Minnesota case, Baker v. Nelson.  Opponents of same-sex marriage have often relied on that ruling, which said simply that such a ban did not raise a “substantial federal question.”

The Utah judge said a summary ruling like that from the Supreme Court is no longer binding on lower courts, “when doctrinal developments indicate otherwise.”  He said that there have been several such developments, citing several decisions on gender equality and on equal rights for homosexuals.

While some other courts have found that the Baker precedent still determines the issue, Judge Shelby said that all of those rulings had been issued before the Supreme Court ruled in the Windsor case last June.  In that decision, the Court found that the Defense of Marriage Act’s provision that all federal benefits keyed to marriage were limited to opposite-sex marriages violated already-married gay and lesbian couples’ right to equality.

Although the Windsor decision did not answer the issue before him, Judge Shelby wrote that “its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development.”  The Supreme Court, he noted, foresaw that its decision in that case would lead to a number of lawsuits raising the very issue of a state’s authority to ban same-sex marriage.

In the wake of the Windsor decision, “there is no longer any doubt that the issue currently before the court in this lawsuit presents a substantial federal question,” the Utah jurist said.”

As a result of this ruling and in connection with his appointment by President Obama, Judge Shelby will be accused of being a liberal activist judge. In reality he was highly recommended by both of Utah’s Republican senators:

Mike Lee noted that Judge Shelby is a “‘pre-eminently qualified lawyer’ who will be an ‘outstanding judge.'”

“Bob is a good man who has studied our laws inside and out, and he’s going to make a great addition to our District Court in Utah. He’s a hard worker who’s given his time in public service and defended the law in private practice as well. I congratulate Bob on this tremendous honor, and know he will fulfill this serious responsibility and serve his community as he has time and time again.” -Orrin Hatch

There may be some who disagree with the ruling and may claim that an ‘activist judge’ has usurped the power of the people to decide who can and cannot have the right to marry. Judge Shelby’s decision will be proven correct as the years pass by and the struggle for equal rights continue. With that said, he’s already unearthed a truly historic, how-in-the-hell-did-they-say-this-with-straight-face statement in quite possibly the worst Deseret News editorial of all time:

“Gays and lesbians are not deprived of any rights they are due in a liberal democracy when a state, like Utah, through open democratic processes insists that marriage is between a man and a woman.”

Gays and lesbians are unequivocally denied due process and equal protection under the law when the tyranny of the majority says that their lives have less meaning, dignity and value by denying them the right to marry. The institution of marriage is strengthened with each passing day as we witness the tears and joy of our brothers and sisters enjoy the blessings of full equality.

 

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The Reign of the Judges

 by Corbin Volluz

 

How Can a Pro-Gay Marriage Guy Like Me Be Against Striking Down Utah’s Anti-Gay Marriage Law?

I voted for the legalization of gay/lesbian marriage in Washington State last year.  That proposition passed by a majority vote.  It is now legal for gays and lesbians to marry in Washington.  That is a good thing.

In 2004, the majority of Utah citizens voted to ban gay/lesbian marriage.  Earlier this month, a federal judge struck down Utah’s law.  That is a bad thing.

How can I believe that the one thing is good and the other is bad?  Because of the process by which it was achieved.  Let me explain.

A Brief History Lesson

When the 13 colonies broke away from their mother country, they created a centralized government under The Articles of Confederacy.  (I apologize for the history lesson, but I will keep it brief and to the point.)  This centralized government was so weak that it almost lost the Revolutionary War.  It was too weak to muster a federal army, and ultimately too weak to pay those that signed up “for the duration” of the conflict.

The Revolutionary War, among other things, taught the fledgling country that it needed a stronger centralized government.  Hence the United States Constitution was drafted and passed by the representatives of the individual states.

Because the earlier abuses of a strong centralized government (i.e., King George III of England) was still fresh in the minds of Americans, and because they did not want to set up a new government with the power to repeat those abuses, a list of ten Amendments was appended the Constitution.

These ten Amendments are called the Bill of Rights. (Cue Schoolhouse Rock music.)

The Bill of Rights was put in place to restrict the power of the new centralized government, also called the federal government.

The Constitution gives certain express powers to the federal government.  Unless a power is explicitly given to the federal government in the Constitution, that power is reserved to the individual states.  This was the solution envisioned by the framers to avoid the federal government assuming and exercising powers that should be left to the people of the various states to decide for themselves.

To make this absolutely clear, the Tenth Amendment spells it out:

Amendment X

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.

For almost the first century of the country’s existence, this was understood to mean that the Constitution protected citizens against abuses by the federal government, and the federal government only.

Mr. Smith Goes to Washington

This is why, when Mr. (Joseph) Smith went to Washington to seek redress for abuses by Missourians against the Mormons, he came back empty-handed.  The general feeling at the time was that the federal government had no role in protecting citizens against abuses by state governments.  The Constitution did not extend that far.

Enter the Civil War.

Contrary to popular belief, the Civil War was not fought over slavery, but over the issue of states’ rights.  In other words, how far could the federal government dictate to the states what the states did in their own states?

Shortly after the conclusion of the Civil War, three Amendments to the Constitution were passed.  These Amendments (XIII, XIV and XV) are often called “The Civil War Amendments.”

The Fourteenth Amendment

The XIVth Amendment allowed the federal government greater authority over the states:

AMENDMENT XIV

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Multi-volume treatises have been written explicating this one section of the XIVth Amendment, and the case law that has been generated as a result.

Suffice it to say here that this Amendment allowed the federal government to force states to ensure to its citizens the same protections contained in the U.S. Constitution.

States are allowed to provide more protections to its citizens than are provided in the federal Constitution, but states may not provide fewer protections.  If a state passes a law that provides fewer protections to its citizens than the federal Constitution, that law is subject to being struck down by a federal judge as unconstitutional.

This is powerful medicine.

This means that, if a federal judge finds that a state law violates a protection in the federal Constitution, the federal judge may strike down the state law as unconstitutional.

State laws are passed by the voice of the people.  They should be given extreme deference by federal judges.  Only if a state law violates a right expressly granted the people in the federal Constitution should it be struck down.

King George is Back and He’s Wearing a Black Robe

This brings us to the decision of U.S. District Judge Robert J. Shelby issued earlier this month, striking down as unconstitutional Utah’s 2004 law banning gay/lesbian marriage.

One can read the federal Constitution from front to back and will find no mention of marriage—not straight marriage; not gay marriage; not lesbian marriage; not plural marriage.  Nor will one find any reference to gays, bi-sexuals, lesbians, or transgendered people.  It simply is not there.

In other words, because the federal Constitution does not explicitly protect such marriages, or explicitly protect such peoples, the Tenth Amendment applies, and the issue is reserved to the states to make their own decision by the will of the people.

Strict Constructionism

In case you hadn’t figured it out by now, I am what is called a “strict constructionist.”  That means that I construe the federal Constitution strictly, and refuse to read into it any rights, privileges or immunities that are not expressly set forth there.

Many good, intelligent people do not like the “strict constructionist” approach because it means that the majority of people in a state like Utah can pass discriminatory laws like the one banning gay and lesbian marriages.

But even discriminatory laws are constitutional unless . . . wait for it . . . the law violates a provision of the Constitution. The Constitution itself provides a method of adding constitutional protections.  It is by passing Amendments to the Constitution.  It is a difficult process.  It is supposed to be.  But many Amendments have nevertheless been passed in the over 200-year history of the Constitution.  (At last check we are up 27.  Or should I say XXVII?)

It is much easier for a lawyer in a black robe to simply “discover” a constitutional right than it is to pass a constitutional amendment.  This is the view of those who tend to describe the Constitution as “a living, breathing document.”  Of course, it only lives and breathes in accordance with their view of things.

It is easy to cheer on such decisions by federal judges, but only so long as it is not your ox that is getting gored.

The problem with the alternate view, as I see it, is it gets played out in the following way: A federal judge (or judges) does not personally think a particular law is a good law.  Therefore, the judge wishes to strike down the law as unconstitutional.  Therefore, the judge creates a “right” in the federal Constitution that is not there at all, but that the judge wishes were there.  Then the judge strikes down the offending law as “unconstitutional.”

Lawyers have to go to three years of law school in order to learn how to do this.

The Reign of the Judges

Where does this lead?

It leads to a situation where the will of the people can be overridden by one lawyer in a black robe.

It leads to a system where we are governed no longer by the will of the people, but by federal judges not elected by the people.

The Book of Mormon records a lengthy period of time where the Nephites were governed by “the reign of the judges.”  The same could be said of the United States of America today.

We are living under “the reign of the judges.”

 

Wars and Rumors of War

I am afraid the federal judiciary will ultimately discover they can push around the American people only so far.  At some point, the American people will push back.

One civil war was fought over the issue of federal encroachment on states’ rights.  If the current trend continues, it is only a matter of time before a second civil war erupts.

A wise person once wrote that it is the nature and disposition of almost all men, as soon as they get a little authority, to immediately begin to exercise unrighteous dominion.

Judges are not exempt.

When all is said and done, the question boils down to whether the United States will have a government of law or a government of men.

I prefer law.