Federal Judge Strikes Down Utah’S Ban On Same-Sex Marriage

[rockpond]

Yeah ever since Madison said it was merely a tautology lacking any independent substance it has been neglected

I think the constitutional "problem" we have here is the conflict between the 10th amendment and the 14th amendment. I suspect that the courts would, in some regards, like to leave the marriage definition to the states but then we've got the demands of equal protection telling them that Utah's definition is unconstitutional at a federal level.

For the record, I am not opposed to the stay having been granted. I don't want anyone to feel that judicial processes weren't followed appropriately. However, I do believe that ultimately Utah's Amendment 3 will be overturned on 14th amendment grounds rather than upheld based on the 10th amendment.

[Stone holm]

I think the constitutional "problem" we have here is the conflict between the 10th amendment and the 14th amendment. I suspect that the courts would, in some regards, like to leave the marriage definition to the states but then we've got the demands of equal protection telling them that Utah's definition is unconstitutional at a federal level.

For the record, I am not opposed to the stay having been granted. I don't want anyone to feel that judicial processes weren't followed appropriately. However, I do believe that ultimately Utah's Amendment 3 will be overturned on 14th amendment grounds rather than upheld based on the 10th amendment.

I doubt they are going to pump a lot meaning into the 10th Amendment, but its possible given Kennedy's opinion in DOMA. There were several legal pundits who argued that Scalia and company missed the boat in resurrecting the Confederacy by not joining Kennedy. But the 10th Amendment is a tricky thing kind of like the small government argument, it really depends on whose ox is being gored at the moment. So I tend to agree with Madison in dismissing it as a tautology. Course using a tautology is one of my favorite teaching tools, " You are right, except when you are wrong."

[thesometimesaint]

I doubt they are going to pump a lot meaning into the 10th Amendment, but its possible given Kennedy's opinion in DOMA. There were several legal pundits who argued that Scalia and company missed the boat in resurrecting the Confederacy by not joining Kennedy. But the 10th Amendment is a tricky thing kind of like the small government argument, it really depends on whose ox is being gored at the moment. So I tend to agree with Madison in dismissing it as a tautology. Course using a tautology is one of my favorite teaching tools, " You are right, except when you are wrong."

 

True. It didn't work out too well in the 1860's and doubt it would work out well today.

[Stone holm]

True. It didn't work out too well in the 1860's and doubt it would work out well today.

I agree with the idea of the States functioning as laboratories which you see mentioned in various cases, and that the Feds should not disrupt that which makes sense when we look at the DOMA decision and the hands off policy towards Colorado and Washington when it comes to pot, but grow a little uneasy when it comes to essentially mixing government and religion.

[Danzo]

I agree with the idea of the States functioning as laboratories which you see mentioned in various cases, and that the Feds should not disrupt that which makes sense when we look at the DOMA decision and the hands off policy towards Colorado and Washington when it comes to pot, but grow a little uneasy when it comes to essentially mixing government and religion.

 

 

Translation: I agree with the result in Windsor so  the 10th amendment is good.   I agree with the result of Kitchen so the 10th amendment doesn't mean anything.

 

you are in favor of letting states decide and keeping the federal government out of it and you are in favor of having the federal government tell the states what to do.  As long as you like the result.

[Stone holm]

Translation: I agree with the result in Windsor so  the 10th amendment is good.   I agree with the result of Kitchen so the 10th amendment doesn't mean anything.

 

you are in favor of letting states decide and keeping the federal government out of it and you are in favor of having the federal government tell the states what to do.  As long as you like the result.

 

Yeah basically that is how the 10th Amendment is treated, it doesn't actually state what has been put within the Federal government's power and what has been put in the State's power and what has been reserved to the Citizens, it just states well if it isn't in the Federal domain its in one of the other two.  One could as well make the argument that "marriage" isn't within the power of either the Federal government or the State government, but has been reserved to the people themselves.  So in that case the 10th Amendment argument would be that neither the Federal government, nor the State government has the power to define marriage, each individual is empowered to define it for themselves.  Course, in fact the 10th Amendment is more likely irrelevant since the 14th Amendment in essence vested in the SCOTUS the power to decide whether the States could or could not define marriage in a mannery which discriminates against gays and lesbians.  It could be argued that the DOMA decision was that the Federal legislature by statute could not interfere with how States treated SSM, but that does not mean that the Supreme Court cannot intervene because of the 14th Amendment which is about whether the States can do certain things to individuals, not whether the Federal government (Congress and POTUS) can do things.

[Buzzard]

Some have used the parallel of interracial marriage to show that all states need to be brought into compliance with federal standards. 

To me, it would seem a better parallel is recognition of first cousin marriages. Legal in 30 states, their acceptance is a hodgepodge of different and conflicting statutes throughout the USA. Some states recognize cousin marriages from other states, some do not. Some require that one of the partners be sterile. In a few states, including Utah, cousins who were married legally in another state but move to that state can be arrested and prosecuted for incest, even if they have been married many years and have children. 

One wonders why no one is screaming about marriage equality for cousins? Certainly their marriages are looked down on by many, and illegal in not quite half the states. One can only postulate that they are simply not as well organized nor have they engaged law firms and formed organizations to vigorously pursue their cause. 

[rockpond]

Some have used the parallel of interracial marriage to show that all states need to be brought into compliance with federal standards. 

To me, it would seem a better parallel is recognition of first cousin marriages. Legal in 30 states, their acceptance is a hodgepodge of different and conflicting statutes throughout the USA. Some states recognize cousin marriages from other states, some do not. Some require that one of the partners be sterile. In a few states, including Utah, cousins who were married legally in another state but move to that state can be arrested and prosecuted for incest, even if they have been married many years and have children. 

One wonders why no one is screaming about marriage equality for cousins? Certainly their marriages are looked down on by many, and illegal in not quite half the states. One can only postulate that they are simply not as well organized nor have they engaged law firms and formed organizations to vigorously pursue their cause. 

 

But are those laws against first cousin marriage ever enforced?

 

There are something like a dozen states where consensual sodomy is illegal (some for homosexual couples only, some for both homosexual and heterosexual couples) despite the Lawrence v Texas decision.  But I'm not aware of those laws actually being enforced.

[Buzzard]

But are those laws against first cousin marriage ever enforced?

 

There are something like a dozen states where consensual sodomy is illegal (some for homosexual couples only, some for both homosexual and heterosexual couples) despite the Lawrence v Texas decision.  But I'm not aware of those laws actually being enforced.

I suspect that like a lot of laws, enforcement is uneven. But earlier this year, Maryland was debating making such marriages illegal in their state, indicating that the issue is still on the radar. Sodomy laws, while still on the books in some states, cannot be enforced due to the Supreme Court decision. Were it to be done, it would be tossed out. 

My point was that cousin marriage laws vary radically from state to state, and yet no one is citing 14th amendment concerns to make sure that they achieve equality via federal court decisions. The fate of and regulations pertaining to such unions have been left up to....each state. What a concept!

[california boy]

I suspect that like a lot of laws, enforcement is uneven. But earlier this year, Maryland was debating making such marriages illegal in their state, indicating that the issue is still on the radar. Sodomy laws, while still on the books in some states, cannot be enforced due to the Supreme Court decision. Were it to be done, it would be tossed out. 

My point was that cousin marriage laws vary radically from state to state, and yet no one is citing 14th amendment concerns to make sure that they achieve equality via federal court decisions. The fate of and regulations pertaining to such unions have been left up to....each state. What a concept!

It is because no one has brought up cousin laws to the Supreme Court.  So until a case is brought before the Supreme Court and it is prooven that cousin laws violate someone's 14th amendment rights, there is not federal law at this time.

 

The same goes for gay marriage.  Until a case is brought before the Supreme Court based on the 14th amendment, there is no federal law concerning gay marriage.  Once that case is brought before the Supreme Court, then a ruling will be made.  Perhaps Utah will be the state that brings the first gay marriage to the Supreme Court.  We can only hope.

[Stone holm]

I suspect that like a lot of laws, enforcement is uneven. But earlier this year, Maryland was debating making such marriages illegal in their state, indicating that the issue is still on the radar. Sodomy laws, while still on the books in some states, cannot be enforced due to the Supreme Court decision. Were it to be done, it would be tossed out. 

My point was that cousin marriage laws vary radically from state to state, and yet no one is citing 14th amendment concerns to make sure that they achieve equality via federal court decisions. The fate of and regulations pertaining to such unions have been left up to....each state. What a concept!

Incest laws have a clear rational basis and would be upheld. Its a fairly easy argument to uphold 1st cousin marriage bans because of the increased likelihood of genetic defects. Anyone who has lived near a close knit Amish colony understands the issue. So the upholding of such bans would be easy under the rational secular basis test.

[The Nehor]

 In a few states, including Utah, cousins who were married legally in another state but move to that state can be arrested and prosecuted for incest, even if they have been married many years and have children. 

 

There goes my dream of moving to Utah.

[Stone holm]

There goes my dream of moving to Utah.

Oh my Vermonters best not move there either. I wonder if 1st Cousins enter into a SSM will that be banned.

[cdowis]

Incest laws have a clear rational basis and would be upheld.

 

 

1. Really, so what about two brothers who want to marry?

 

2.Since the potential to bear offspring is no longer a requirement for marriage...... incest should be a moot issue.  Father and daughter can marry if onee or both are sterilized, for example.

[thesometimesaint]

1. Really, so what about two brothers who want to marry?

 

2.Since the potential to bear offspring is no longer a requirement for marriage...... incest should be a moot issue.  Father and daughter can marry if onee or both are sterilized, for example.

 

While I have absolutely no desire to marry brother, or my sister, or my father, or my mother we're all well over the age of legal consent. I don't believe it is a responsibility of the state to determine whom can and can not enter into a legally binding contractual agreement, once they have reached the age of legal consent, and no duress is involved.

[cdowis]

While I have absolutely no desire to marry brother, or my sister, or my father, or my mother we're all well over the age of legal consent. I don't believe it is a responsibility of the state to determine whom can and can not enter into a legally binding contractual agreement, once they have reached the age of legal consent, and no duress is involved.

 

OK, as I said, incest is no longer an issue with the change in definition of marriage.

[california boy]

More progress for gay marriage.

 

Utah Gay Marriages to be Honored by U.S.

 

In the meantime, I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages. These families should not be asked to endure uncertainty regarding their status as the litigation unfolds. In the days ahead, we will continue to coordinate across the federal government to ensure the timely provision of every federal benefit to which Utah couples and couples throughout the country are entitled – regardless of whether they in same-sex or opposite-sex marriages. And we will continue to provide additional information as soon as it becomes available.

 

[Stone holm]

1. Really, so what about two brothers who want to marry?

 

2.Since the potential to bear offspring is no longer a requirement for marriage...... incest should be a moot issue.  Father and daughter can marry if onee or both are sterilized, for example.

 

Well, I believe that at least one Court has answered the last question in that it found that sex between a Stepfather and a step-daughter constituted incest even though the genetic hazard no longer existed.  I also read in a history of my ancestors where a closely related cousin was allowed to marry upon the promise not to have children.  The rational basis against two brothers marrying probably disappears with SSM.  Sterilization probably removes the rational objection to siblings marrying.  Not sure the issues involved in parent child matches ever go away regardless of the age.  This is one of the problems the antis are having with the argument that marriages is primarily for making babies argument as it currently only gets a relatively small percentage of the married population

[thesometimesaint]

OK, as I said, incest is no longer an issue with the change in definition of marriage.

 

Most often there is a level of duress in incest to make such legally unacceptable.

[cdowis]

Most often there is a level of duress in incest to make such legally unacceptable.

 

I am speaking of a consensual agreement, of course.  Any agreement made under duress is "legally unacceptable".

 

You can run but you can't hide.

[thesometimesaint]

I am speaking of a consensual agreement, of course.  Any agreement made under duress is "legally unacceptable".

 

You can run but you can't hide.

 

I think you make my point. Is it the responsibility of states to determine whom by mutual legal consent can enter into a contractual agreement?

[california boy]

This is a link to a New York Times article about 

 

Utah, in Opposing Gay Marriage, Finds Three Arguments Are Better Than One

 

It explains what the three arguments the State of Utah used against gay marriage.  Take a look.  What do you think?  Are any of them strong arguments in your opinion.

 

Here are a few quotes from the article if you don't want to read the entire article.

 

 

Utah is no longer using the argument that limiting marriage encouraged "responsible procreation".

The state’s first argument, made before Judge Robert J. Shelby of the Federal District Court in Salt Lake City, was that “the traditional definition of marriage reinforces responsible procreation.” The government benefits that come with marriage, the state said, encourage opposite-sex couples to form stable families “in which their planned, and especially unplanned, biological children may be raised.”

Judge Shelby agreed, saying the argument was true as far as it went. Encouraging marriage would make it more likely that the children of heterosexual couples would have parents who were married.

But there was no reason, the judge went on, to think that allowing same-sex couples to marry would change that. To the contrary. By forbidding gay and lesbian couples to marry, he wrote, “the state reinforces a norm that sexual activity may take place outside of marriage.”

 

 

 

Then Utah argued that children generally fare best when reared by their two biological parents in a loving, low-conflict marriage. When presented with decades of accredited studies

 

 

 

Lawyers for the couples challenging Utah’s ban on same-sex marriage responded that the assertion “is not true.” For evidence, they cited “the scientific consensus of every national health care organization charged with the welfare of children and adolescents,” and listed nine such groups. The view of the groups, the challengers said, “based on a significant and well-respected body of current research, is that children and adolescents raised by same-sex parents, with all things being equal, are as well-adjusted as children raised by opposite-sex couples.”

Utah responded that it would not be swayed by “politically correct trade associations,” referring to, among others, the American Academy of Pediatrics, the American Medical Association and the American Psychiatric Association. “We are not ruled by experts,” the state’s brief said.

 

Then the question arose how allowing gay marriage would hinder straight couples from raising responsible children

As with the argument about responsible procreation, it is possible to accept the state’s position that it is best for children to be raised by their biological parents and yet wonder how that would be more likely to happen by denying gay and lesbian couples the right to marry. Utah argued that the two things are linked.

“By holding up and encouraging man-woman unions as the ‘preferred’ arrangement in which to raise children,” the state said, “the state can increase the likelihood that any given child will in fact be raised in such an arrangement.”

Judge Shelby had rejected the argument as illogical and counterproductive. Utah’s ban, he wrote, “does not make it any more likely that children will be raised by opposite-sex couples.” But it certainly demeans and humiliates the thousands of children being raised by same-sex couples in the state, he said

.

 

 

 

So what do you think?  Winning arguments?  Or not.

[Calm]

Are there thousands of children being raised in such relationships in this state?

Anyone have numbers? My mind still pictures Utah like back in the day I used to visit my grandmother...felt pretty empty then. Even though I see the reality of the SL Valley filled wall to wall and Utah Valley getting that way, it still feels like a mostly rural state to me. Remarkable how enduring first impressions can be.

Doesn't make any difference to the argument. Just curious.

The problem for me with these types of arguments is that human behaviour is not always obviously logical so what is needed is data to defend each of these claims, IMO. I am not in the mood to read legalese right now so have not read the source document but if the rebuttal is as was presented and nothing more (such as a data driven justification of why their set of studies should be preferred over the others as opposed to just dismissing them), I don't think they will carry the day.

Interesting article: http://www.sltrib.com/sltrib/news/56343271-78/gay-sex-couples-cities.html.csp

Would like to see the rationale for allowing gay singles to adopt but not gay couples...and may i point out this is strong evidence for my claim humans are not always obviously logical in their behaviour.

[california boy]

I don't have any idea how many children of gay families are affected.  And like you said, that has little to do with the legal argument.  There is no tipping point where the argument wins of x number of children are involved.  What I do recall is that over 1300 couples have married while the ban was lifted.  The number of marriage licenses in many counties that was issuing marriage licenses were broken.  No small number in my opinion.

[Stone holm]

This is a link to a New York Times article about 

 

Utah, in Opposing Gay Marriage, Finds Three Arguments Are Better Than One

 

It explains what the three arguments the State of Utah used against gay marriage.  Take a look.  What do you think?  Are any of them strong arguments in your opinion.

 

Here are a few quotes from the article if you don't want to read the entire article.

 

 

Utah is no longer using the argument that limiting marriage encouraged "responsible procreation".

 

 

Then Utah argued that children generally fare best when reared by their two biological parents in a loving, low-conflict marriage. When presented with decades of accredited studies

 

 

 

 

Then the question arose how allowing gay marriage would hinder straight couples from raising responsible children

 

 

So what do you think?  Winning arguments?  Or not.

The antis have had problems articulating arguments, I suspect the fact is that the 600 lbs. gorilla in the Court Room is that this is a religious based law, and that doesn't work in the Court Room. Perhaps if they hired a really smart atheist lawyer tore am up a secular argument it might help.