"This policy judgment is not intended to denigrate gay couples"Absolutely it is. You're taking an average (that isn't really
established when it comes to same-sex couples) and stereotyping it onto all of
them, ignoring the fact that even if the averages came out that way, some
same-sex couples would do great and some opposite-sex couples would do
terribly.You would never ever apply these averages to other
categories to ban from marriage. Race? Religion? State (say goodbye to marriage
Mississippi)? Should we ban whichever ones score lower on average from marrying?
It'd be absurd. We even allow single people to adopt in Utah, showing that
this average argument isn't even used when it directly applies to a choice
of placing a child.Nope, this whole average thing is only ever used
as an excuse to deny same-sex couples marriage rights, and that's all it
is, an excuse, not a constitutionally sound reason, and that is why there is
probably not going to be any reversal.
Mr. Nelson - I have to disagree with you. Your arguments up front are
reasonable if they at all applied but I do not see that they do. The issue
really rests on the 14th Amendment. Your justification to exclude the 14th in
this case being "straight homes are better for children," simply does
not apply as there is no valid evidence of this and having or raising children
is not a requirement for civil marriage in any jurisdiction of which I know.
You do not exclude the elderly and infertile from the marriage contract.As long as the civil marriage contract is offered to couples and denied
to others based upon their sexual orientation, you have a violation of the 14th.
I see nothing to contradict this nor any justification to stay the finding of
Judge Shelby. The AG's claim of "an affront to Utah" and
"irreparable harm" is really grabbing at straws. There is no evidence
From the landmark Supreme Court case, Loving v. Virginia, " The freedom to
marry has long been recognized as one of the vital personal rights essential to
the orderly pursuit of happiness by free men."Kind of shoots
down Merril's theory.
Even commentators from the "left" have noted the very weak, if
non-existent legal grounds this judge used to overturn Utah's law. The end
does not justify the means. Ideally, individual states will make these
decisions, not one grand Federal incorporation. Much as Nevada and New Jersey
allow gambling, let various states decide and let people vote a second time with
their feet. That is true Federalism, which I support.
I cannot see what the big deal is.Seems that the major sticking
point is the term "marriage"How about we completely do away
with "marriage licenses" and let people get a "union license"
which would be an official government recognition. Let "marriage
licenses" be issues by churches but have no legal standing. I
still cannot see how someone else's "marriage" affects me one way
@Merrill Nelson;It isn't about the state's right to
"define" marriage, it is about the state's inequitable application
of legal benefits to similarly situated couples by inequitable application of
that definition. You can't just tell a subset of citizens they're
"ineligible" for the benefits you give another subset, when in every
other regard the subsets are identically situated. The rights of the individual
may NOT be abrogated by the state without due process (majority vote is not due
process). That is what the 14th Amendment says.You are going to be
sorely disappointed when the courts continue to rule against you."...it is merely a statement of preference intended to encourage
traditional marriage."Please explain how denying SSM
accomplishes that? It does not.
I have a legal question. Just because a law against same sex marriage has been
ruled as unconstitutional, does that "automatically" mean that the
opposite becomes law? In other words, now that a law against something
can't be done, doesn't the state legislature then need to vote to make
the new standing an offical law? Seems to me that is the way it should be. You
see, even though there was a law, passed by the people of Utah, California, and
other states that outlaw same sex marriage, there has NEVER been a law enacted
yet that says it is legal to have same sex marriage. Any more than there has
been a law passed that allows people to marry their dogs. It would seem to me
that the states should still be required to pass that law. Otherwise, since
recent Utah rulings have taken away the polygamy law, one could now assume that
the state should be required to issue multiple partner marriage licenses. Any
lawyers out there? And stick to the SSM, not polygamy. I only use that as an
You must be a really terrible appellate lawyer if you don't know that the
SCOTUS has ruled time and time again in various cases over the last century that
marriage IS in fact one of the "fundamental rights of man". You are
simply wrong on so many levels.
So, for the sake of argument, let's say you are right about a child doing
best in a home with a father and a mother. How does prohibiting same-sex
marriage further that goal? What rational connection is there between
prohibiting same-sex marriage and having children raised by two opposite sex
parents?Does prohibiting same-sex marriage reduce the chances of
unwed pregnancy? Does prohibiting same-sex marriage mean single people are less
likely to foster or adopt? Does prohibiting same-sex marriage mean gay people
are going to give their own children to heterosexual couples to raise? Are gay
people who are prohibited the opportunity to marry the one they love going to
decide to marry straight and raise children with someone of the opposite sex?
Would allowing same-sex marriage reduce marriage and child-rearing by
heterosexual couples? If you answered "yes" to any or all
of these questions, what legally valid proof do you have to support that?You can believe whatever you want, but as a lawyer you know there must
be a rational connection between the law and its stated purpose - you can't
just laws because you want to.
This story was not about what is right or not, is it good or not, is it fair or
not. This article is simply about who historically has the right to make this
decision, the state or the national government.
Dear Representative Nelson, No proponent of same-sex marriage has
"brushed aside" traditional values. You see, proponents only want to
support the traditional institution of marriage by doing the ultimate - joining
in whole heartedly. I cannot understand why anyone wouldn't feel good about
that. No, opposition to same-sex marriage is not about protecting traditional
values. It is deeply rooted in something else entirely.
""deeply rooted in this nation's history and tradition and implicit
in the concept of ordered liberty, such that neither liberty nor justice would
exist""Pure silliness. The entire portfolio of civil
rights cases have been won despite historical precedent. Secondarily, the issue is yes, localities and states can create regulations
around contractual relationships - but those laws must be consistent with
constitutional rights which supersede any law a state passes - in that they can
not arbitrarily carve out special classes of citizens and grant them rights or
privileges that other classes of citizens can not enjoy. And this isn't
just a matter of who lives together or not, but actually comes down to tax law
and individuals tax contribution.... ones taxes is impacted by their legal
status. Therefor their needs to be some justification for having laws that
directly impact individuals creating multiple classes of citizens.Again, I am not a defender of gay marriage, but I am a defender of equal
treatment under the law. I don't have to like someones actions... but do
have to protect their right to choose. Choosing is why we are here after all.
Compelled choice is no choice what so ever.
In the 1967 Loving v. Virginia case, the Supreme Court of the United States
overturned Virginia's Racial Integrity Act of 1924, a law prohibiting
interracial marriage, determining that an interracial couple had a
"fundamental right" to marry. Loving v. Virginia is the likely precedent
to be argued in Utah's Kitchen v. Herbert appeal. Rep. Nelson, you said
"the basis for distinction is simply the policy judgment that children do
better in homes with a mother and a father who bring their unique female and
male traits, talents, insights and abilities to the role of parenting."
Let's test this claim against the Loving v. Virginia case. In 1967, the
majority of Virginians wholeheartedly embraced the superiority of same-race
marriages. As in the Loving v. Virginia case, 'legislative policy
judgment' was adjudicated legally insufficient to justify legislative
prohibitions on interracial marriage. Rep. Nelson, as a state legislator and
appellate lawyer you are familiar with Loving v. Virginia. Contrary to what you
have stated, the Court has a duty to prevent state legislatures from imposing
majority rule or "legislative policy judgments" contrary to "equal
If "marriage" is about LOVE and commitment, what's the big deal?I got married to the one I loved.Someone I wanted to spend the
rest of my life(s) with.I did not get married for sex, I did
not get married just to have a bunch of kids.The kids are now gone,
and so is the other.And my wife and are still in love, and still
"married" for the very same reason where got married in the 1st
place.Love and commitment.Those who keep equating marriage
exclusively with sex, are the one who are perverting it.
@ happy2bhere: Currently there are no laws prohibiting anyone from driving red
cars nor giving them specific permission to do so. Should a law be passed
prohibiting red cars, and that law then struck down, there would not need to be
a law passed allowing red cars. If something cannot be done, you do
not need a law prohibiting that activity - by passing a law prohibiting same-sex
marriage, the tacit acknowledgement was made that without that law same-sex
marriages could occur. As for the recent polygamy ruling, you
misunderstand what occurred. The Judge did not do away with bigamy (being
legally married to two individuals), he simply ruled that cohabiting with
someone while you are married to someone else is not in fact the same thing as
being legally married to both those individuals and therefore not a crime.
Show me one heterosexual family that will forced to forced to split up once
same-sex marriage becomes legal. Just one.
I think this entire process has to fall back on the national government, even
down to the 'definition' of marriage, in order that any person who is
married in one state may also be so in any other state. 50 different versions
isn't going to work.
This demonstrates that the Utah Legislature is planning something radical again
at the next session. They may vote to secede to form a religion based country.
I predict that the 10th will uphold Shelby's ruling and the supremes will
NOT grant cert.
Re: "I think this entire process has to fall back on the national
government, even down to the 'definition' of marriage . . . 50
different versions isn't going to work."You can think that
all you want, but the issue is not what you think, but what the Constitution
requires. And, the Constitution reserves to the states the right to define
marriage.If you want to push your odd views on the rest of us,
you're going to have to do so through the legislative process, not by
co-opting one or another liberal, agenda-driven jurist.
@ happy2bhere: The general rule in law is that you are permitted to do anything
unless prohibited by law. In the case of marriage, the concept is defined in
law as to what it is, followed by a list of exclusions of those who may not
marry. One of those, traditionally, is same-gender. With that removed, the
implication is that unless some other restriction applies, that couple may
partake of the marriage contract.As far as your example with dogs,
and one can add children, furniture, dead people, and lamp-posts, it falls under
contractual law that a person entering into a contract (the marriage contract in
this case) must be legally competent. That is, they must be able to understand
and consent to the action they are about to commit. Dogs, children, and so on,
have long ago been deemed to be not competent.I'm no attorney
but that's what I have picked up over the years.
As soon as liberals start fighting for polygamist marriages and siblings being
able to marry I'll have a little more sympathy for their cries of "end
Are there any more straws to grasp at?
@ Merrill Nelson, athour of this article.Thank you for taking time
to succinctly and eloquently say what a majority or Uthans think.To
read the truth has been most refreshing. Amen.
Although I think Rep. Nelson's case is weak, I'd like to view the
same-sex marriage question from a more visceral place. On Page A4 of
today's Tribune is a photo of two smiling young women holding a Utah
marriage license, which they received on Dec. 23. The joy in their faces leaps
from the printed page. I simply have to ask: If these two people really love
each other and want to marry, why should the state deny them that right?
@Christopher B"As soon as liberals start fighting for polygamist
marriages and siblings being able to marry I'll have a little more sympathy
for their cries of "end discrimination""Since in the
conservative world, the only reason to be married is to procreate, brothers and
sisters should not be allowed to marry, and people like me and my wife who
can't reproduce should have their marriages dissolved. Polygamists? Who cares as long as they are consenting ADULTS and don't
commit welfare fraud, then what's the problem?
The argument made is whether the Constitution gives the Federal Government the
"right" to define marriage, including licensing marriage, or whether
that right is left to the States. The 10th Amendment is very clear. Marriage
is not an enumerated right listed in the Constitution, therefore, defining and
licensing marriage must be left to the States or to the People, unless you
believe that the Constitution is invalid, in which case, your argument that the
14th Amendment somehow allows people to self-determine their sex, even when that
determination is opposite physical evidence, and that the 14th Amendment allows
those who have self-determined their sex to demand that all people in this
nation give them the special "right" to redefine "marriage" to
include their special circumstances. No matter how you twist the Constitution,
"marriage" and issuing a "license" to marry are responsibilities
of the State, not of the Federal Government.
@procuradorfiscal"If you want to push your odd views on the rest
of us, you're going to have to do so through the legislative process, not
by co-opting one or another liberal, agenda-driven jurist."I'm confused. So the states can pass laws regarding that violate an
individual's civil rights, and that is okay with you? The majority should
just run roughshod over the minority regardless of the rights of the minority?
Does that sound similar to mob rule?
JoeBlow said: I cannot see what the big deal is. Seems that the
major sticking point is the term "marriage"You are
completely correct.The major sticking point IS the term
"marriage".If everyone would agree to turn back the clock
and have it be how it was before the first salvo of Same Sex Marriage was ever
fired, I bet you would find every person opposed to SSM would be completely
happy with letting same-sex couples do just as they have always been doing.Then there would be a complete absence of fussing, opposition, news
articles for or against, judges, suits, courts, legal battles, or any notice of
it at all.
I am not sure I understand why conservatives continually make the case for a
losing argument over and over again. Kitchen, among others, addresses why this
is a federal issue, marriage is a fundamental right under the COTUS (not
straight marriage, marriage) and study upon study rebuff his notion of
"child harm". The reason this guy and his cohorts repeatedly lose in
court is because they are making sub-standard arguments. Do conservatives
believe that re-printing the same drivel in the DesNews will somehow magically
lend their losing argument credence in the next legal battle? The
only thing this article demonstrates is that if you've ever had a case
handled by appellate attorney Merrill Nelson, you should have another lawyer
review that case immediately.
@procuradorfiscal"And, the Constitution reserves to the states the
right to define marriage."So you believe the court was wrong to
strike down interracial marriage bans?
It seems like every day we have a new representative writing in about gay
marriage. Shouldn't these guys be busy doing other things? You know, stuff
that matters? Like, cleaning up our air, funding education, writing and passing
campaign finance reform, John Swallow, etc? Or is gay marriage the only issue
that Utah is dealing with right now?
@Christopher B"As soon as liberals start fighting for polygamist
marriages and siblings being able to marry I'll have a little more sympathy
for their cries of "end discrimination""Do you believe
that those who fought interracial marriage bans are also hypocrites for not
including other marriage types in their fight to end discrimination? Or are you
applying a different standard to different marriage movements?
@windsor;So, when Christopher Columbus didn't fall off the edge
of the Earth, since the "majority" believed it was the "truth",
they should have pushed him over, right?
Oh pleeze you got it all wrong,i got married in California a few months ago to
my spouse after waiting for approx. 30 years.So let me just give you
mormons some examples ,im 77 years old so i could drop death anytime soon(ok
lets hope not!) but if i do go and since my spouse is under 65 he will receive
all of my social security now which is close to $2000 per month just like a
straight married couple would. I could mention 1000 additional benefits like my
veterans exemption on my real estate and other tax breaks.Ok one more fact,
because gays were not allowed to marry in the state of California for over 30
years my Federal and State tax was much higher had i been allowed to marry my
spouse and gotten the same tax breaks as straight person i probably would be
richer by $250000 i figured. Money talks so does love but at 77 love does not
pay your bills!
Schee, Shouldn't adults be able to marry who they want to as Chris points
out, even if you disagree with it?Or are you applying different
standards to different adults?
"No one, whether gay or heterosexual, has a 'fundamental right' to
a legal status that is entirely discretionary with the state Legislature."
The only constitutional issue is that of equal protection.The only
rational, legal application of the principle of equal protection is to determine
whether the legislature has acted reasonably in limiting marriage to
heterosexual partners. For example, laws against interracial marriage were
struck down because it was determined that there is no benefit to the state in
limiting marriage to same-race couples, and therefore no basis for states to
include race as a qualification for marriage.To rule that gender is
irrelevant to marriage implies either that there are no gender differences, or
that any gender differences have no bearing on the institution of marriage.But we know there are physiological and psychological gender differences
that are significant and have bearing on the function of marriage. It is well
known that parental gender roles are a significant and deterministic factor in
the raising of children. Thus it is entirely appropriate, legal, and
constitutional for the state of Utah to restrict marriage to heterosexual
@KenNeither you (presumably) nor Chris nor myself believe that adults
should be able to marry anyone they want, so you really aren't pinning me
to anything. If you really think this "why would they support one but not
the others, that's hypocritical" argument is logical then I'd also
invite you to criticize interracial marriage advocates for the same thing. I don't expect you or Chris to do so even though doing so would
make you consistent. After all we have clearly reached the grasping at straws
phase of the same-sex marriage opposition in this nation so it's only
natural to see random "gotcha" tactics. So, what are you going to do?
Condemn me for only supporting decriminalization of polygamy when Chris fully
opposes it and you either oppose it or think it's sometimes okay for
particular periods of time? The courts have previously ruled for
marriage equality for one category (interracial marriage) without making
everything a free for all, despite opposition in state laws to that marriage
type, and they're going to do so again with same-sex marriage.
When people use stereotypical labels in their arguments, they lose credibility.
Whether it be "liberal," "conservative," "agenda-driven
activist," or any other term that is intended to be inflammatory, you bring
your own personal bias into the debate; at that point you lose.Why
do we use those labels? I believe it's for a number of reasons:1.) These labels are to separate us from our enemies. 2.) To
create more animosity towards the opposing view.3.) To promote the
superiority of our own labels.4.) To distract people from the real
issues.Might I remind everyone that people on both sides of this
issue are human beings; some may even say we are all Children of God. Let's
stop with this childish tendency to divide people and come together as a
community to make Utah the best state to live. It won't happen until we
stop all of this divisive bickering and create laws where all can be safe and
live happily. Remember: your happiness is dependent on what you do, not what
your neighbor is allowed to do.
@ChuckGG:"As long as the civil marriage contract is offered to couples
and denied to others based upon their sexual orientation, you have a violation
of the 14th."Does this mean you are arguing for polygamy, close
family relationship marriages, significant age variance marriages, etc? If not,
why not?@Ranch:"...it is about the state's
inequitable application of legal benefits to similarly situated couples by
inequitable application of that definition."The problem easily
solved by contract... and, if you mean filing joint income tax returns, that law
can easily be changed by doing away with that feature in the IRS tax code."You are going to be sorely disappointed when the courts continue to
rule against you."And you're going to be equally
disappointed when SCOTUS rules in favor of Utah. Any other ruling by SCOTUS
would open the door to complete chaos. Because it logically would have to allow
marriage for any and all other arrangements including polygamy, close family
relationships, significant age differences... you name it... And eventually the
demise of marriage altogether... evolving into the behavior of creatures in the
forest or the corral behind the barn.
Schnee, I agree that the courts have previously ruled for one
category(interracial marriage) without making everying a free for all, and are
you glad they stopped at that? If you are honest with yourself you, and other
gay marriage supporters will admit that you believe gays have just as much right
to marry as interracial couples and that if this is the case such rights should
have been extended years ago. So using the example of interracial
marriages being legalized years ago without opening up gay marriage at that time
is a poor argument, unless you believe only interracial couples(and not gays)
should have been extended those rights when they were. And presumably you(and
if not you certainly the majority of gay marriage supporters) do not. To try and claim the moral high ground of "non-discrimination" is
hypocritical when those claiming such moral superiority are against the rights
of polygamists. And to correct what you may believe, I do believe
polygamists should be able to marry and I am against discriminating against them
simply because they are different than you.
Re: ChuckGGYour points make the case better than Kalindras red car
analogy. Which I thought was a little convoluted. Perhaps the reason you reason
so well is because, like me, you are not a lawyer. Since you brought up the
marriage contract though, let me soapbox here and say that I think it is a crime
that a person can these days in some states, break the marriage contract
through adultery, or something, and have no penalty. No fault divorce they call
it. To me, there is always fault that should be dealt with in the legal contract
of marriage just as it would be in a legal business contract. Double standard
in my mind.
@high school fan:"This article is simply about who historically has
the right to make this decision, the state or the national government."The national government's marriage law (DOMA, signed by Pres.
Clinton) was struck down. And in the decision SCOTUS ruled that defining
marriages is reserved to the states.Kalindra"Should a law
be passed prohibiting red cars, and that law then struck down, there would not
need to be a law passed allowing red cars."Utah's one
man/one woman 'law' was not struck down. Amendment 3 to the Utah State
Constitution was struck down. The law still exists on Utah's law books.
Will it ever be reversed? I doubt it... which means any gay/lesbian persons who
get a license for same-sex marriage is violating state law.@Hutterite:"I think this entire process has to fall back on the
national government, even down to the 'definition' of marriage, in
order that any person who is married in one state may also be so in any other
state. 50 different versions isn't going to work."That
provision already exists in the federal Constitution... Privileges and
immunities Clause, Article 4.2.
Every single one of Nelson's arguments could be and has been used to deny
interracial couples a marriage license. They were veiled discrimination then,
just as they are now. Mr. Nelson is simply being disingenuous in order to curry
favor with his misguided House leadership.
wrzThank you for clarifying what I knew was a problem with Kalindras
red car analogy, but just didn't know how to express it. Your point, and
the one I was trying to make, is that it now seems that other laws need to be
changed in Utah, and likely other states, for the same sex couples to have legal
standing as an equal marriage contract. However, I suspect that, as you said,
it will not be changed. What will happen is that they will become one of those
laws that are still on the books, but are just ignored, and not enforced. Much
like some of our current immigration laws are.
To those that argue that the Utah ruling, if allowed to stand, will lead to the
legalisation of polygamy and incestuous marriages:No. The state still has legitimate and rational reasons to prohibit those. Same sex marriages? Not so much. The state has consistently failed to
prove that they have a valid basis for prohibiting these. Too bad,
wrz says:"The problem easily solved by contract... (a Marriage
License is that contract) and, if you mean filing joint income tax returns, that
law can easily be changed by doing away with that feature in the IRS tax code
(honestly? We can't even get a law passed to say the sky is blue...)."And you're going to be equally disappointed when SCOTUS rules
in favor of Utah." (It's not going to happen).@Ken;We LGBT support polygamists marrying the person of their choice (they
already can). All we're asking is the same right. If they want to marry
more people of their choice, that is another issue for the courts as it actually
does add additional rights and will require changes to inheritance law, tax law,
etc. Same sex marriages require no changes to these laws.@m.g.
scott;Is stoning still appropriate punishment?
Thank you for publishing this excellent article. As I read through
Judge Robert J. Shelby's written decision it felt like he had spent way to
much time on the Huff Post web site and/or too much time watching MSNBC.
Seriously it just seemed like political talking points that had very little in
the way of credible reasoning to back them up. The big legal words were there
but the substance wasn't. It seemed like smoke and mirrors.This
article on the other hand is just spot on in it's careful, balanced
reasoning and clarity. Thanks again for publishing it.
@wrz: [@ChuckGG: "As long as the civil marriage contract is offered to
couples ... 14th."Does this mean you are arguing for polygamy,
close family relationship marriages, significant age variance marriages, etc? If
not, why not?}Let's see if I can answer this as you seem to be
on a bit of a tangent.I don't believe I am arguing for or
against any of the items you cite. They are irrelevant to this case. The basic
construct in law is that if a legal construct exists such as civil marriage,
created by the State, then it is available to all within that State except as
stated as prohibited by statute. Here we have a group of people who qualify
(straights) and do not fall into any of the exclusionary categories. Here is
another group (gays) who otherwise qualify but are disallowed access to civil
marriage because of their innate sexual orientation and nothing more. The Court
said this is not valid grounds for exclusion.The other examples you
provided are not the ones in question nor part of the suit that prompted Judge
Schnee uses the word 'averages' as if it actually appeared in the
article, turning one thing to mean something different. No one is
'averaging' what kind of family works best for children and the
studies have all concluded that a male and female role model is the ideal for
children. This doesn't mean that gay couples can't be good parents,
and not all children have the opportunity of having both a male and female
parent. Granted. But let's not read something into the article that
"Moreover, "marriage" is of purely statutory origin. No one, whether
gay or heterosexual, has a "fundamental right" to a legal status that is
entirely discretionary with the state Legislature."True only as
long as the state legislature follows constitutional law, in this case, equal
treatment under that law. The state legislature could do away with marriage
entirely, THAT would pass the equality test.
Wow, and with that weak argument appellate lawyer Merrill Nelson loses his case.
Sir as an appellate attorney you should study up more on case law. Loving v.
Virginia (1967). The ruling will most certainly not be overturned. Utah better
begin to accept and adapt to a changing World.
I realize the good representative is just throwing a bone to his conservative
constituents, but seriously, the lack of understanding (or, probably, the lack
of willingness to acknowledge the actual issues involved) is shocking.This issue isn't about who gets to decide what marriage is. No one
disputes that that's the role of the state. But as with any other state
law, it can't violate the constitutional rights of a US citizen. Rep.
Nelson appears to forget that a legal resident of Utah is also a US citizen. If
Utah is handing out marriage licenses to one group, it has to hand them out to
all groups, lacking a rational public purpose to do otherwise. This is not hard
to understand: if Utah gives marriage licenses to white folks, it has to give
them to black folks. If it gives marriage licenses to Mormons, it has to give
them to Jews and Muslims, too.The residents of Utah deserve a whole
lot better than a politician perpetuating falsehoods about how the law works, or
the role of the judicial branch of government.
The Constitution and Bill of Rights guarantee the rights to "life,
liberty,and the pursuit of happiness" no church dominated state legislature
has the power to subvert those rights.
Has Merrill Nelson read the SCOTUS ruling on US v. Windsor (the repeal of DOMA)?
Yes, the DOMA ruling says that "regulation of domestic relations is an area
that has long been regarded as a virtually exclusive province of the
States," BUT in that same paragraph in the ruling, it states:"State laws defining and regulating marriage, of course, must respect the
constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U.S. 1, 87
S.Ct. 1817, 18 L.Ed.2d 1010 (1967)"Merrill Nelson made zero
mention of Loving v. Virginia. He may wish to embrace ignorance when it comes
to Loving, but I assure you, the SCOTUS is well aware of Loving's
significance in cases related to same-sex marriage.State exclusivity
over regulation of domestic relations has it's limits, and discriminating
against same-sex couples is one of them. The arguments that marriage is about
procreation (yet, they let sterile couples wed) or opposite-sex families will be
harmed by letting same-sex couples marry have not been backed up by evidence,
and so the courts have no choice but to not see them as justification to
Rep. Nelson says one of the "fundamental" rights people enjoy is to
direct the upbringing of children. He says gay couples exercise this right
without state interference and without need of a marriage license. This is
true.He then says Amendment 3 meets the rational basis test because
it is a policy judgment that children do better in homes with a mother and a
father who bring unique traits to the marriage.But if gay couples
are already raising children (as is their fundamental right), allowing them to
marry doesn't change the number of children being raised in same sex
households. Hence, there is no rational basis. I'm sure Rep.
Nelson has a good response to Judge Shelby's point, but I didn't see
it in this piece.
The kids argument doesn't fly. What actual sociological studies have found
is that gay, lesbian and hetero COUPLES have children with similar happiness and
life outcomes. Where kids struggle is being raised by a single parent. Parenting
is a lot of work,(as anyone who has a child would say) and it's hard for a
single person to manage all the needs of their children. If the state really
believes that gay people are so bad for children why is it legal in Utah for a
single person to adopt a child? Heck, why isn't the state trying to take
these kids away from single parents and put them in 2 parent homes? Are they
really worried about the kids? Or do they just not like the gay lifestyle?
Any and all arguements will never be agreed upon by everyone. We will all
someday be judged by a higher court..
Little Andy, I thought that Judge Wapner retired.
"the basis for distinction is simply the policy judgment that children do
better in homes with a mother and a father who bring their unique female and
male traits, talents, insights and abilities to the role of parenting."In other words the author thinks the sate should be upholding gender
stereotypes. The problem is there are absolutely no legally defined roles or
responsibilities based on gender. Enshrining any such roles into law would not
fly even in the case where marriage is limited to opposite sex couples. The
state had no interest in or authority to pigeon hole parenting responsibilities
based on gender before the Kitchen decision. To now claim the state needs to is
nothing but thinly veiled bigotry towards same sex couples or even opposite sex
parents that don't fit nicely into the June and Ward Cleaver mold.
@Happy2Bhere, no, your question is based on an ignorance of the fundamental
system of how rights and laws interact. No law needs to exist in order to allow
you to do something. You are instead free to do anything that the law does not
specifically prohibit. Our freedoms are not given by the state, but are inherent
in our existence as human beings. Unless the state has explicitly created a law
to prohibit something, we have the right to do it. Since the law banning gay
people from marrying has been struck down, no new law needs to be passed to
allow it. However, the provisions of the marriage law that still restrict
marriage to two consenting adults who are not close blood relatives stills
stands, so such silly statements comparing this to allowing people to marry
their dogs is also based in ignorance.
It is not discrimination to treat things differently that are different. That
is what is at issue here and why Amendment 3 was passed. Same-sex couples vary
greatly from different-sex couples:1) Different-sex couples can
procreate, same-sex couples cannot. Those that say the infertile or elderly
cannot procreate have a false argument. Universities have passing grades to
identify those that have grasped a particular concept. Do some pass that have
not grasped the concepts, yes. That does not mean you throw the system out. No.
Exceptions to the rule do not disprove the rule.2) Different-sex
couples combine the distinctly gender-based characteritics brought by a man and
a woman. Same-sex couples do not. They lack characteristics found in
different-sex marriages.3) We have thousands of years of history and
experience with different-sex marriage. We have one decade of same-sex
marriage. Certainly a lawsuit will arise from a child who will sue the state
for allowing them to be raised by same-sex parents because they were not granted
their 'equal protection' and 'due process' allowed to every
other child who has been raised by different-sex parents since the dawn of time.
Marriage is a religious term. We are not a theocracy so no marriage
heterosexual or same sex should exist in any government. All should be civil
contracts. Once we allow religion (Christian, Jewish, Muslim) the door is now
legally open to be ran by religious leaders and that religion may change. We
might think we will start out as a Christian nation but that could morph into
any religion the current religious leader chooses.
Mr. Merrill, maybe it is the US Constitution you really don't approve of.
You should try reading it. It says: "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."
The request for stay filed with Justice Sotomayor by the state is an
embarassment, following much of the same flawed logic expressed above. The
Plaintif's rebuttal makes mince meat of it, by legal analysis, logic, and
fact. Read both, then decide for yourself.I am a heterosexual,
married male. If gay or lesbians marry, or have married, that has no effect
whatsoever on my marriage, nor on my propensity to have and raise offspring.Be honest. This is about upsetting a religious applecart, and not in
any way about what is good for the citizens of Utah, juvenile or adult,
regardless of sex or gender.
If any of Mr. Nelson's claims are defensible, why didn't the state use
similar arguments before the district court? Answer: the AG's office was
(and is) embroiled in a significant corruption scandal involving our current and
former AG. Therefore, it can be presumed that the state didn't believe it
had a case and did the best the could, or that they were ill-prepared resulting
from the lack of leadership and ongoing turmoil. Either way, by putting on a
"non-defense" the state allowed the train leave to the station with its
ultimate destination being national marriage equality, be that in a few months
or years. Mr. Nelson's legal thinking is interesting, technical, precise
and short sighted, seemingly in the service of maintaining the status quo and
not advancing liberty. Fascinating. And wrong.
The Real MaverickOrem, UTIt seems like every day we have a new
representative writing in about gay marriage. Shouldn't these guys be busy
doing other things? You know, stuff that matters? Like, cleaning up our air,
funding education, writing and passing campaign finance reform, John Swallow,
etc? Or is gay marriage the only issue that Utah is dealing with right now?--- Well, you see, it's politics! Older, more churchgoing folks
provide most of the money and votes. The American ideal is that our
representatives are there to serve the entire public, but lately, there is too
much catering to the party and to the donors, not enough selflessness.
So if 2 people have no plans of having children they should be barred from being
able to be married? Should you have to sign an affidavit that they will have
children within a specified period of time or their marriage will be annulled
and they will have to refile taxes for the years in which they weren't
parents?Marriage is more than having kids. Your argument is
completely ground in the longest running game of telephone ever played. Using
the Bible as a guide for how people live in the world today would be like baking
your bread over feces.
Sure, keep tilting at those windmills on the ash heap of history. While
you're at it why not go all the way and revisit women's suffrage and
slavery. Enjoy the futility as you waste you life!
Governor Herbert should have shown some courage and told the federal government
that no one is going to tell him what the state of Utah has already decided!
whether it is over ruled (asitshouldbe) or not, some one needs to get a clue as
to understanding what the Constitution says about the will of the people and
state sovereignity! Federal government, not here, not now, not ever. I am an
independent American that knows my rights. Get lost!
@FreedomGuy "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."Thank you for sharing this paragraph
from the 14th amendment. If these two sentences provided one inkling about
whether defining marriage as a man as a woman violated homosexuals' due
process and equal protection we wouldn't have the debate we currently have
and Judge Shelby wouldn't have needed a 53-page screed to defend his
activist ruling. One judge, with every predilection for bias that voters on
Amendment 3 had, decided he could decipher these two sentences better than the
super majority of voters. It's wrong. In cases where the constitution is
not clear, the super majority rules.
@Really???"Might I remind everyone that people on both sides of
this issue are human beings; some may even say we are all Children of God.
Let's stop with this childish tendency to divide people and come together
as a community to make Utah the best state to live."I really
appreciate these comments. I recognize we will have differing opinions, but I
wish we could actually talk out our differences. It can be discouraging to read
the hate and quick assumptions people make on these comment boards. Having said that, I believe the Declaration of Independence's teaching
"that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights..." I believe rights are bestowed upon us by
God, and that the government is to protect these rights. I believe the
government has overstepped its bounds when it begins to endow rights.Whether or not you believe in ssm, shouldn't we be concerned by the
manner in which Shelby overturned? I agree with Nelson and hope to see the
Loving vs. Virginia offers no help. Interracial marriages are historically and
biologically no different than same-race marriages. That is what could not be
proven in by Virginia. Same-sex marriages are different from traditional
marriages in many ways. Similarly, when Loving vs. Virginia was ruled
interracial marriages had been in place successfully in other countries for
centuries. Same-sex marriage have existed on this planet for all of 10 years.
Traditional marriage advocates are acting reasonably when they vote to the
time-honored definition of marriage while considering the 14th amendment.
Utah's broad civil union rights and protection of homosexual rights show
that homosexuals are respected; and so is traditional marriage.
I have some good news and some bad news:Good NewsYou are quite
correct. U. S. v. Windsor upholds the right of the states to define marriage.Bad News:Windsor rejects every other argument you make. Justice
Kennedy in Windsor declared marriage "a fundamental right." Windsor
invalidated the Defense of Marriage Act because it denied Gays Constitutional
protection to "equal protection under the law" and "due
process." Windsor rejected thoroughly rejected the "rational basis"
argument that children do better in homes with opposite sex parents than
same-sex parents. Windsor relied on scientific evidence that "children and
adolescents raised by same-sex parents, with all things being equal, are as
well-adjusted as children raised by opposite-sex parents. (See Brief of American
Psychological Association, et al. as Amici Curiae on the Merits in Support of
Affirmance, United States v. Windsor, 133 S.Ct. 2675 (2013) (No. 12-307).)Worst NewsYou are not going to overturn this ruling by making
arguments the Supreme Court has already rejected.
There's no question this is a critical states' rights/federalism
issue, and any appellate decision will likely be made on those grounds. But the
author of this piece has clearly never read Loving v. Virginia.
There is a big difference between miscegenation and restricting marriage to male
female. Aside from the fact that the Constitution has always allowed for
certain distinctions based on gender, Miscegenation laws were a creation of the
state. The male female model is designed by nature (see I didn't say God).
Male female is what you study in school under human reproduction. We are all
here as a result of a male and female component, even if we were conceived in
vitro. Nature designed men and women to compliment each other in forming a
union.It's the model I want presented to my young school
children. It is absolutely rational to maintain the traditional time-tested
definition of marriage.Having said that I fully support civil unions
/ domestic partnerships which would protect someone like Willem.
Solution: Call an article 5 convention, amend the U.S. Constitution. You'd
need the legislatures of 34 states to request the convention, and legislatures
of 38 states to ratify the amendment. Nothing congress or a judiciary can do.
A big problem is the way we appoint judges. Too many federal judges
have never been judges before, so neither the Senate or the citizens have any
idea how a judge is going to be. There's no body of judicial work to
examine. We the people deserve better.
Nelson makes some good points but completely ignores the fundamental problem
that arises from the 14th amendment, which is the basis of all gay marriage
claims. It's all about the equal treatment clause or that no
person could be denied "equal protection of the laws." That's the
issue and not whether or not people have a right to marry. Problem is that if
the state treats persons A and B one way, then it has to treat persons C and D
the same way.
There is an obvious solution to all this which I'm surprised the lawyers
haven't figured out yet. All they have to do is pass a law that gender
will no longer be determined by the X and Y chromosomal pairing of the
individual. Once it's not legally possible to determine a person's
gender, it will no longer be necessary to argue about what rights they have as a
result of their gender. Justice will be truly fair, because it will be
Banderson "I am an independent American that knows my rights. Get
lost!"I fail to see what rights of yours or anyone have been
taken away by allowing same-sex couples to marry. No one is banging down church
doors that disagree with the issue and demanding the pastor/priest/bishop there
marry gay couples, and no one is forcing you to believe differently than you do
even if they strongly disagree with your viewpoint. Marriage equality has
nothing to do with stripping others of their rights; instead it grants millions
of people the ability to enter into the same binding contract that countless
others in love have been able to do for years.
SCOTUS has not held that the contours of a fundamental right can be limited
based on who seeks to exercise it or on historical patterns of discrimination.
Moreover, the government does not suffer irreparable harm when an enjoinedmeasure is unconstitutional. The public, when the state is a party asserting
harm, has no interest in enforcing an unconstitutional law. It is well
established that every states marriage laws;must respect the constitutional
rights of persons; and are subject to constitutional guarantees. Windsor, 133 S.
Ct. at 2691-92.The exclusive emphasis on state sovereignty overlooks the
rights protected by the Fourteenth Amendment were produced by a democratic
process. Everyone in Utah should have a compelling interest in ensuring that
those rights are respected. It is always in the public interest to prevent the
violation of constitutional rights. The harm experienced by same -sex couples in
Utah as a result of an inability to marry is undisputed.
@ChuckGG:"As far as your example with dogs, and one can add children,
furniture, dead people, and lamp-posts, it falls under contractual law that a
person entering into a contract... must be legally competent."Those restrictions are according to law. If the law re gay marriage can be
changed, so can the contracts law be changed re marriage... else it's
discriminatory.@CHS 85:"Since in the conservative world,
the only reason to be married is to procreate, brothers and sisters should not
be allowed to marry..."But sibs might just wanna be together for
company... just like many gays/lesbians claim.@Stalwart Sentinel:"... marriage is a fundamental right under the COTUS (not straight
marriage, marriage)..."Not so. There is nothing in COTUS about
marriage... of any kind. And that document clearly says all powers not delegated
to the US is reserved to the states and the people.To: Willem, Los
Angeles, CAThe same could be said for polygamy and any other types
of marriages.@Schnee:"The courts have previously ruled for
marriage equality for one category (interracial marriage)..."Then they can make the same ruling re all other types of marriages.
This just makes me cringe.You are on the wrong side of history and makes
you look foolish.
Beware of gender identity laws espoused by the gay community. Below is what
will result:"Democratic California Gov. Jerry Brown signed a new
law into effect on Monday afternoon affording students confused about their
gender identity a host of new rights, including the ability to use either a
boy's or girl's restroom and either locker room.The
legislation, Assembly Bill 1266, authored by Democratic State Assemblyman Tom
Ammiano from San Francisco, allows students in grades as young as kindergarten
to use facilities consistent with his or her gender identity, irrespective of
the gender listed on the pupil's records.Ammiano's
spokesman, Carlos Alcala, told TheBlaze on Monday afternoon the bill would even
permit high school males who say they identify as females, to use a woman's
locker room"This is what we stand to lose if people of morality
fail to stand up and make our voice heard! This is just one of many harmful
effects that same sex marriage will cause in our communities.
Same-Sex Marriage: Not in the Best Interest of Children (May / June 2009
issue of “The Therapist,” a publication of the California
Association of Marriage and Family Therapists—CAMFT)By Trayce
Hansen, Ph.D.As mental health professionals, it’s our ethical
and moral obligation to support policies that are in the best interest of those
we serve, particularly those who are most vulnerable—namely, children.
Same-sex marriage may be in the best interest of adult homosexuals who yearn for
social and legal recognition of their unions, but it’s not in the best
interest of children.Proponents of same-sex marriage believe love is
all children really need. Based on that supposition, they conclude it’s
just as good for children to be raised by loving parents of the same sex, as by
loving parents of the opposite sex. But that basic assumption—and all that
flows from it—is naively simplistic and denies the complex nature and core
needs of human beings.
I don't support gay marriage.
The scientific consensus of every national health care organization charged with
the welfare of children and adolescents – including the American Academy
of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the
American Psychiatric Association, the American Psychological Association, the
American Psychoanalytic Association, the American Sociological Association, the
National Association of Social Workers, the American Medical Association, and
the Child Welfare League of America – 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 parents. See Brief of American Psychological
Association, et al. as Amici Curiae on the Merits in Support of Affirmance,
United States v. Windsor.
@Henry Drummond:Bad News: Justice Kennedy in Windsor declared marriage
'a fundamental right.'"Well, there you go. Problem
solved. Anyone, including polygamists, sibs, close relatives, significant age
difference marriages appear to be a fundamental right. That seems like good
news, not bad news."Windsor relied on scientific evidence that
"children and adolescents raised by same-sex parents, with all things being
equal, are as well-adjusted as children raised by opposite-sex parents."Children in same-sex marriages are harmed... not because of something
intrinsic about the marriage arrangement, but because playmates will notice
something strange about the kids' 'mom & dad' and will shun
and tease. There's the problem. And there's nothing can be done
about it.@AllBlack:"Problem is that if the state treats
persons A and B one way, then it has to treat persons C and D the same
way."Utah's marriage laws treat A, B, C, and D the same...
i.e., you can marry anyone you wish provided they are of the opposite sex.
Nothing could be fairer than that.
@MeckofahessSalt Lake City, UT "Same-Sex Marriage: Not in the Best
Interest of Children" That was a guest article. CAMFT issued the
following statement completely contradicting your comment.-----California Association of Marriage and Family Therapists Issues Statement
Supporting Marriage EqualitySan Diego - September 2009. The California
Association of Marriage and Family Therapists, after its September 2009 Board of
Directors meeting, issued the following statement supporting marriage
equality:The CAMFT Board of Directors reaffirms CAMFT’s broad
and long-standing prohibition against discrimination on the basis of sexual
orientation and/or marital status by endorsing marriage equality.
@ Miss Piggie"Children in same-sex marriages are harmed... not
because of something intrinsic about the marriage arrangement, but because
playmates will notice something strange about the kids' 'mom &
dad' and will shun and tease. There's the problem. And there's
nothing can be done about it."You could refrain from teaching or
otherwise indicating to your children that it's "strange."
Pains me to say it, but I tend to agree and predict SCOTUS will overrule and
affirm that this is an issue left to the States.
Even if marriage were entirely a discretionary matter under state law,
there's always the 14th amendment to assure that it must be
non-discriminatory. Then there's also the matter of other marital
arrangements (e.g., polygamy) that become problematic under this formulation.
The state has to show a compelling interest in barring behavior it considers to
be anti-social. When it comes to polygamy, all you need to do is look at
there comes a point where the heavy hand of activist judges and the millions of
dollars they cost the people of a state should be factored in to the reversal of
their unconstitutional opinions. Think of the wasted millions that will be spent
reversing this judges careless opinion. It seems to me that there should be
consequences that a state can invoke when a federal judges attempts to undo
their constitution wrongfully. The judge should be punished by probation and
perhaps a three strikes and your out rule and the federal government should have
to reimburse the state for the waste of time and money spent. Federal judges
have WAY too much power and it is time for states to reclaim the power that was
originally intended for them by our founders.
In demolishing most of DOMA, what the Supreme Court has done is enumerate
Government's role in treating married couples equally. As Scalia noted,
very angrily, you can't really do that without stepping on a state's
right to prevent same-sex couples from marrying. But, they did it.But, I have a question for you. If same-sex couples can form lifetime bonds,
which they seem to be able to, to live together in a common household and care
for each other into old age the same as any married couple, which they seem to
be able to, and if they're already allowed to raise children, which they
seem to be able to, what exactly are you accomplishing by denying them the
ability to pledge themselves in marriage and be legally recognized as such?Because if you're not accomplishing anything of secular merit, you
have a very high burden to prove that it's not just religiously-motivated
This red herring of an editorial completely ignored two legal bits that Utahns
have tried to ignore in relation to modern American marriage, but cannot: the
14th Amendment and the full faith and credit cause in the US Constitution.
Can't get away from that. Those who want to keep marriage man and woman,
then they should work for a US Constitutional amendment with that definition.
History indicates that marriage traditions and laws always follow what people
want. No other explanation for polygamy, polyandry, quickie divorce, no fault
divorce and so on. The marriage equality march is on and will not be stopped.
The slippery slope of political correctness at work. We have entered into an era
where small margins of the population will dictate broader policies. Example is
the California Law regarding gender identity. We are at a pivotal
time now where we have to use common sense. We don't have to be rude to
folks. We just need to remind them that marriage is God's institution. You
can play house but it's not acceptable to God.
@SoCalChris a.k.a. Chris B...Unlike California the State of Utah has never
legalized civil unions. If you live in California as your handle states. What do
you tell your kids currently? As far as your comparison of the "male/female
model" please keep in mind the comparison of man to ape was used by the
Southern States. Hopefully you believe that was beyond ridiculous as well. Like
it or not Judge Shelby's ruling will not be overturned. Loving v. Virginia
(1967) and all the whining in the World will not change it.
Rep. Nelson's editorial is spot on! He makes cogent logical arguments that
illuminate issues that many commenters selectively choose to overlook and
discredit. We would all do well to pay closer attention to the real issues here
and not be distracted by the same old feeble arguments posted by the critics.
Keep up the good fight, my man!
"No one, whether gay or heterosexual, has a "fundamental right" to a
legal status that is entirely discretionary with the state Legislature."This statement in the article is completely untrue!! If it were true
then a state would also potentially be able to legally define marriage only
between one Non-Mormon and another Non-Mormon banning Mormons from legal
marriage. Live and let live and quit trying to force your religious beliefs on
"Gay couples exercise all these rights without state interference and
without need of a marriage license."Without state
interference!?! Calling these marriages an "Affront" in the appeal
before the SCOTUS is inherently an act of interference.Without need of a marriage license?!! This statement implies that marriage is
nothing more than a symbolic act. In fact, marriage confers over a
thousand statutory and federal benefits including rights of inheritance , co-
responsibility of shared debts and medical decision making on the spouses in
this legal contract. To imply that gay couples don't need these benefits
and the legal safe ground inherent and provided for under these legal standards
is disingenuous at best and insulting at worst.To declare otherwise
as a government representative, whose constituents include gay people, is too
clever by half.I think it's time for people who feel compelled
to enter their voices into this debate to be honest and to traffic in facts not
"the basis for distinction is simply the policy judgment that children do
better in homes with a mother and a father who bring their unique female and
male traits, talents, insights and abilities to the role of parenting." This statement is based on what? Your assumption? Would you also like
to argue that children do better in homes with a LDS mother and father who bring
their unique religious female and male traits, talents, insights and abilities?
Here is an assumption for you. "Children with two loving and supporting
parents regardless of their gender do better."
@ Normal Guy:Homosexuals need more than "respect", they need
all the same legal protection the law offers you (assuming you are straight) to
protect themselves, their relationships and especially their families. @ SoCalChris:So, after your kids get taught the traditional
"family model", how do you answer questions about friends with single
parents? Or step parents? Or adopted and foster kids...? Joint custody? Since
you are interested in maintaining the "time-tested" definition of
marriage and family, this will present a conundrum. And, if your kids are
curious where babies come from in same-sex parent households, the good news is
that they come into the world in precisely the same way as... babies born to
opposite sex couples. FYI.
I would be VERY SURPRISED if SCOTUS overturns the verdict. I say that because
they would invalidate the 700 or so marriages that have occurred since the
ruling. SSM advocates will, in my mind, successfully argue that their right to
marriage would be taken away (as opposed to being denied the right to
marriage).While I can see how Shelby got the conclusion that he got
(although I disagree with his ruling), I think his greater error was to not stay
his decision pending appeal. Staying the decision would have let the status quo
continue until a final ruling (he had to know that either way he ruled, there
would be an appeal).
The judge was correct in his ruling. Your basis for distinction is flawed.
"the policy judgment that children do better in homes with a mother and a
father who bring their unique female and male traits, talents, insights and
abilities to the role of parenting."How is that any different
from a basis of distinction "the policy judgment that children do better in
homes with white male-female couples earning over $150,000/year, both with a
college education and are between the ages of 25 and 35?" Do we then
exclude all couples from getting married that do not meet this criteria?
While we are being sympathetic and empathetic to the desires for marriage in the
LGBTI and LGBTQ community, let us not forget the goal by their activists is to
do away with marriage altogether. Read and hear the testimony of Masha Gessen,
noted lesbian speaker and writerby typing: "Masha Gessen Marriage
Extinction youtube" or just Google the title and read Masha Gessen
interviews and commentaries on marriage.(The Deseret News comment section
does not allow the convenience of an address to be posted)
@NoodleKaboodle:"The kids argument doesn't fly. What actual
sociological studies have found is that gay, lesbian and hetero COUPLES have
children with similar happiness and life outcomes."Do a search
on the "Regenerus study." It found just the opposite as what you said.
This type of legal council is why Uath has no chance of winning this appeal.
These arguments are weak and out of a bubble that is about to be burst.
Why bother arguing for 14th amendment equal protection to a bunch of
conservative constitutional originalists? I'm sure the majority of them
would like to go back to that bygone era when the 14th amendment didn't
exist to bother the sovereign states with trivialities and nuisances like the
Bill of Rights.
It will be interesting to see what Merrill Nelson's unqualified and off
the wall opinion will be when the 10th and SCOTUS uphold Kitchen v Herbert.
Excellent article. Right on target. If society hadn't lost its mind and
gotten so messed up on reason, logic and morals, this wouldn't even be an
issue. Marriage is NOT a right. It is a privilege for which
individuals must meet certain criteria which are laid down by the states. If it
was a fundamental right, you wouldn't have to get a license. No one needs
a license to exercise freedom of religion or freedom of speech. Those are
fundamental rights. Marriage is not.
Thank you Merrill Nelson! It is no longer politically,legally,or socially to
oppose SSM in this country, but that doesn't make it wrong. Hopefully, you
are correct in your predictions about a reversal of the latest federal ruling,
and Utahns will be left to make their own marriage laws the way they see fit.
Merrill Nelson says "The Constitution delegates no authority to the federal
government on the subject of marriage."This is true. The word
"marriage" does not occur in the Constitution. Technically there is no
right for ANYONE, Straight OR Gay, to get married, at least from a federal
standpoint. However, the federal government has complicated things by bestowing
1,138 separate benefits, rights, and responsibilities to married couples
(according to the GAO).It's also worth noting that the U.S.
Supreme Court, in Loving v. Virginia, declared marriage to be one of the
"fundamental rights of man." There's also that pesky "Full
Faith & Credit" clause, under which a Straight couple can fly off to Las
Vegas for a drunken weekend, get married by an Elvis impersonator, and that
marriage is automatically honored in all 50 states.So what happens
to married Gay couples in Merrill Nelson's world? Say a Gay couple is
legally married in Iowa and later relocates to Utah. Does the State of Utah have
the right to declare their marriage null and void? And if so, does the couple
lose federal benefits such as survivorship under Social Security?
In the midst of the emotional stir that has been fueled by Judge Shelby's
recent ruling, it is refreshing to read Representative Nelson's clear and
concise legal analysis, devoid of mud slinging and fury. I am glad to see an
elected official who respectfully and wisely defends our legal system, stands up
for the voice of the people, and exposes efforts to undermine the constitutional
principles of federalism and separation of powers. I applaud any civil effort
to honor and uphold the family as the past, present, and future strength of our
Patriot, I'm curious where you would find support for your three strikes
your out policy for federal judges in the Constitution. Or do you not believe
in following the Constitution? Miss Piggie, I've been curious
about something for quite awhile: do Conservatives intentionally misrepresent,
and not understand, basic arguments regarding issues, or do they really not
understand the arguments?
Governments collect taxes and pay benefits. In many cases they collect more
taxes from people who are not considered as married. That's what the
Windsor decision is about. In many cases, like Social Security survivor
benefits, they pay less in benefits to people who are not considered as married.
The issues you address are less significant than the issues you
ignore. There is no justification to collecting more taxes from same-sex
couples, especially when there marriage is recognized in the state where it
happened. There is no justification for penalizing same-sex couples by
excluding them from benefits they have earned just as honestly as partners whose
marriage is recognized. Those who ignore these financial issues may
be able to convince themselves with their arguments against same-sex marriage,
but it's unlikely they will convince judges.
Great article. There are many on here that will never understand either side. I
hope we can all meet in the middle some time. I believe equal rights and
preserving traditional definition of marriage are both possible.
Danger of same sex relationship laws:"Democratic California Gov.
Jerry Brown signed a new law into effect on Monday afternoon affording students
confused about their gender identity a host of new rights, including the ability
to use either a boy's or girl's restroom and either locker room.The legislation, Assembly Bill 1266, authored by Democratic State
Assemblyman Tom Ammiano from San Francisco, allows students in grades as young
as kindergarten to use facilities consistent with his or her gender identity,
irrespective of the gender listed on the pupil's records.Ammiano's spokesman, Carlos Alcala, told TheBlaze on Monday afternoon the
bill would even permit high school males who say they identify as females, to
use a woman's locker room"The above is what is coming to
Utah. Do you think the gay community will respect your rights conservatives?
Anyone who thinks that same-sex “marriage” is a benign eccentricity
which won’t affect the average person should consider what it has done in
Massachusetts. It’s become a hammer to force the acceptance and
normalization of homosexuality on everyone. And this train is moving fast. What
has happened so far is only the beginning. Example:Kindergartners were
given picture books telling them that same-sex couples are just another kind of
family, like their own parents. In 2005, when David Parker of Lexington, MA
– a parent of a kindergartner – strongly insisted on being notified
when teachers were discussing homosexuality or transgenderism with his son, the
school had him arrested and put in jail overnight.
LiberalJimmy DavidNL,Again, I don't have a problem with legal
protections similar to marriage. I have a big problem saying SSM is the same
thing as marriage. What happens is what we are seeing in CA. A float in the
Rose Parade, with small kids watching, all about a same sex wedding. How can
anyone think that's healthy. There will be no way around teaching young
school kids about homosexuality if gender makes no difference in marriage. Liberal Jimmy, I was single for a long time, I am a step parent, and my
parents were divorced. I understand all those things. We need to treat everyone
with respect, and you don't need to call everyone married to do that.JimmyNL, Chris B and I don't have that much in common, at least
when it comes to sports!
I'm with Merrill. He makes more sense to me than the several commentors
@Amormonperson"I don't support gay marriage."So? What has that got to do with anyone's marriage but your own?@Tek;Google: "Study: Children of Same-Sex Parents Are
Healthier Than Peers" - an Austrailian study has found that children in
same-sex parented households are healthier than their peers in opposite-sex
parented households.The "Regenerus study" is seriously
flawed and has been discredited (but you'll ignore that little tidbit).@Cats;Bigotry is not a moral value.
A lucid and straight-thinking post, Merrill. Let's hope the supreme
justices see the situation the same way. If the justices deny Utah's appeal
it will be one more nail in the coffin of State's Rights.
The easy solution for Utah would be to cut the baby in half. From the Op-Ed,
"The Legislature is not required to adopt any marriage law at all and could,
therefore, repeal its marriage law at any time." I suggest that the
legislature do just that. If people want a marriage contract or religious
groups require one, let them draw up a civil contract that meets their needs,
much like a prenuptial contract, which could be adjudicated in civil court.Co-habitation in different forms is already the norm; same-sex,
heterosexual living together unmarried, polygamy, etc. Simply remove any benefit
from the government for marriage. As for the Married filing jointly tax
benefit, remove it and increase the child deduction. By the way sometimes
marriage for senior couples can be financially harmful. It could reduce Social
Security payments, eliminate military pensions for widows that remarry, etc.
When you talk about not easily brushing aside traditional values of marriage and
family, you haven't looked at the earlier laws very closely have you
brother. And as recently as the 90s, first cousins were "easily" granted
that rightful passage to marriage, but that constitutes the traditional values
of marriage and family you're talking about, right? Rather wordy article
for not having much backbone. Having been single and happily married as an
adult, marriage should either be for all consenting adults or not in the law
books at all. Every good standing citizen should enjoy the same rights, tax
breaks, and other benefits, regardless of marital status. Watch closely as times
I think not that the New Testament has been reversed Romans 1......
M. Nelson gave way to better arguments than some of the above,however laws
will not change people, but people can change laws.Having said that,
we need to conclude that either people will reject a new meaning to marriage or
they will comply to the demands of time.If they are allowed to speak.That this is not easy for most of us is clear, just let me ask you who
is fooling and who is telling the truth ?Nobody should force
religion on me, so should no law force my choice of marriage.However, it
would be up to the people, then why would the LGBT community insist on ignoring
the majority in Utah?The other reasons are not mentioned, and that
is where the fooling comes in. Be Aware.
If the argument is that households with one father and one mother the best for
the raising of children, is the state of Utah prepared to begin removing all
children from single-parent households? If the state of Utah prepared to tell
the widow of a soldier, killed in defense of his or her country, that you are
not fully qualified to raise a child, and you should not be allowed to raise a
child? If the argument is that states should have soverign right to
define marriage, have the people of Utah forgotten that the Utah Territory was
TWICE denied admission to the federal Union because of how it choose to define
marriage in its' Territory Constition (which included polygomy at the
time). Marriage Equality (there is no such thing as 'gay
marriage') will come to Utah as it will come to all states when the U.S.
Supreme Court finally enforces the 14th Amendment and the equal protection
clause of the Constitution for all Americans, and overturns narrow, bigoted, and
hateful laws and state amendments who's sole purpose is to denigrate gays
and gay families.
The writer assumes the courts will follow the law, which is a huge assumption.
To those insisting that marriage is a State right, I hope you never decide
to move to another State - or country -for that matter.Because your
"marriage" would then become null and void.[States not recognizing
"marriages" from other States.]Do you still want to go
Kind of fun to read all of these arguments. It's like listening to people
argue whether or not the law of gravity is still valid. When all the arguing is
done and the dust settles gay marriage still won't bring happiness to those
who experience same sex attraction.Judges may rule. Political bodies
may pass laws. Opinion polls may speak. But all of them are helpless to alter
reality. The reality is that their are fixed laws in this world that apply to
all of us. When we violate those laws we will be unhappy. To my
friends and neighbors who experience same sex attraction: Judge Shelby
can't restore your happiness. Only living in harmony with universal laws
will bring peace and happiness. Sexual relations being exclusively between a man
and a woman who are married to each other is one such law. It's as real as
the law of gravity.
Good for your Merrill, I think it is appropriate for this newspaper to print
your reasoning about the issue of marriage equality. We can all agree that two
thirds of the state voted to prohibit opposite sex marriage. You and Monte
Stewart, the state's hand picked legal counsel both come from similar
backgrounds and represent an intellectual and harmonious voice that allows the
larger religious community in Utah a forum to vent their frustration with
homosexuality. However, in the end, gay people will no longer live as second
class citizens in a Utah world . . . or for that matter, in a free world. This
is the 21st century. Change is inevitable, and the new freedom gay people will
enjoy will be of no harm or consequence to you or the voices you represent.
@ Meckofahess,"It’s become a hammer to force the
acceptance and normalization of homosexuality on everyone."-
That is what this gay marriage debate is all about, ultimately. Homosexuals who
married were already intimate, already living together, and already getting
benefits traditionally afforded heterosexual married couples. So why marriage?
In order to legitimize and normalize their lifestyle.
Agree completely with this article. Hoping gay marriages will be reversed as
its the will of the citizens of Utah. Half of the people commenting on this
article live out of state. Thanks for your interest but put your energy into
your own states marriage laws instead of tampering with ours.
Utah's policy reasons for upholding Marriage as "a union of a man and a
woman" are legitimate and non-discriminatory. The marriage law is about what
is best for children and an ordered society.In a new study it was
shown that "Children with Same-Sex Parents Fare Worse" than those raised
by married biological parents. From the abstract, yes, published in a
peer-reviewed journal:"A 20 % sample of the 2006 Canada census
is used to identify self-reported children living with same-sex parents, and to
examine the association of household type with children's high school
graduation rates. This large random sample allows for control of parental
marital status, distinguishes between gay and lesbian families, and is large
enough to evaluate differences in gender between parents and children. Children
living with gay and lesbian families in 2006 were about 65 % as likely to
graduate compared to children living in opposite sex marriage families.
Daughters of same-sex parents do considerably worse than sons."The above quote was cited by Maggie Gallagher at The Corner, on National
Review on-line, from a study done by Canadian professor Douglas Allen of Simon
@ "JMT" and others...I agree that you are able to "vote with your
feet". Same-sex marriage does not affect you in ANY way, it already is
accepted throughout the United States, and you are free to leave, "or vote
with your feet" at any time.
I couldn't get past this line: "What may be considered
'fundamental' is the right of all persons to determine their own
sexuality".No one determines his or her own sexuality, it is
given to each of us and we discover it. Consequently the entire premise of the
article is off base. And as for "gay marriage" not being
deeply rooted in our culture... that may be true, but "marriage" IS
deeply rooted and havong access to marriage is fundamental.
Nelson need only read "Loving vs. Virginia" to see all of his points
invalidated. In a unanimous decision, the US Supreme Court struck down all
state laws banning interracial marriages, arguing that such laws violate Due
Process and Equal Protection. Chief Justice Warren wrote:
"Marriage is one of the basic civil rights of man'.... To deny this
fundamental freedom on so unsupportable a basis as the racial classifications
embodied in these statutes, classifications so directly subversive of the
principle of equality at the heart of the Fourteenth Amendment, is surely to
deprive all the State's citizens of liberty without due process of law. The
Fourteenth Amendment requires that the freedom of choice to marry not be
restricted by invidious racial discrimination. Under our Constitution, the
freedom to marry, or not marry, a person of another race resides with the
individual and cannot be infringed by the State." Substitute
"sexual-orientation" for "racial" and "the same sex" for
"another race" here and you'll get a good part of Shelby's
This argument has been successfully (not accurately) framed by proponents of ssm
as one of civil rights. If religion and values are used to argue against it
people are labeled as bigots, when in fact, the right to marry is not a civil
right. Freedom of religion and freedom of conscience, however, are guaranteed.
One side is claiming discrimination against, the other trying to protect
religious freedom. I do not hate ssm proponents, I just disagree. I am told this
is not an attack on freedom of conscience and our rights to worship will remain
intact... but then why the boycotts and legal actions against those who
disagree. Why can't a small business owner protect their freedom of
conscience and refuse services? Do they not have both a right to freedom of
conscience and a right to make a living? Why was the Catholic church denied
funding and forced to close one of the nation's largest adoption agencies
because of their refusal to recognize gay marriage? What happens when religions
refuse to allow marriages inside churches and temples? There is a precedent, and
no matter what either side says, the two competing arguments cannot co-exist.
It is rather amusing to see the grasping of straws by the author of this opinion
piece and the commentators. Gay marriage is a done deal, it's all over but
the screaming by those with an interest in meddling in the personal and legal
affairs of two other individuals. There is no compelling argument against it,
certainly none so far here, and many compelling arguments for it.Tradition, children, a god,freedom of religion etc. are not compelling
Title: ‘My view: Same-sex marriage will likely be reversed’ Sure. Just tell it to the other x17 states too. Ok?
I am just pleased that the opponents of marriage equality have such pathetic
arguments from such incompetent counsel.Welcome to full, equal
citizenship for ALL Americans!
Using the story about David Parker of Massachusetts getting arrested for not
wanting his kids to read a book about same sex couples is misleading at best.
The book in question was neither given to the students not required reading for
them. It was available in the library to be taken home and read if their parents
desired. This book was not forced upon anyone. Secondly, David Parker staged the
whole event to get a reaction. He refused to leave school grounds until the
school met his demands that the book be removed. After being warned countless
times he would face trespassing charges unless he left, police were finally
called to escort him off school property. They even tried persuading him to
leave, but he still refused saying they would have to arrest him, but not before
making numerous phone calls to ensure press was present. As far as his night in
jail? That was his choice as well as he declined to pay a $40 bail in order to
be released before facing a judge for trespassing. So as you can see, this had
nothing to do with same sex marriage but instead was a publicity stunt.
The train left the station. You cannot stop it now.As a Gay man and
LDS, I remember growing up reading books about "sin" and
"forgiveness", the most serious condemnations to homosexuality were the
lack of self control, the inability to have just one partner, the moving away
from God, not being able to have family, active homosexuals were condemned to a
life of loneliness, etc.Now, LGBT people are demanding the right to
marry the person they love and create a family. We want to have the same
relationship and rights that heterosexuals take for granted.Many of
the saints instead of championing the law of chastity and sound families, are
attempting to destroy them. The LDS Church should be the force behind pushing
those souls that once were considered lost into the stability of a monogamous
and healthy relationship.If you cannot accept SSM is your right. But
please do not be an obstacle to other people's life.If you
believe that we all will be judged by the Lord. Then, let him do his job.The SCOTUS will rule on favor of Utah by ratifying the
Unconstitutionality of Prop. 3
This author is an example of the people we have in state legislature? That
should give us a lot of comfort...not. Has this state legislator taken
constitutional law classes, or did he get in on RNC rhetoric like the rest of
them? Pretty sure we all know the answer to that. The 14th amendment supersedes
state constitution sir, every time including this case. It's nice you can
offer false comfort to opponents of SSM but this case is over and judge
Shelby's ruling will be upheld. Now how about you fix the ridiculous
education and high stakes testing assessments of our public schools...do
something useful. As has been stated "this train has left the station".
If States control the definition of marriage, why didnt the Supreme Court say
that and support Proposition 8 which was passed by the people of California?There are a few holes in this arguement that marriage is not necessary
to people to have freedom and liberty. We will see what freedoms this court
Ender has not told the full truth about David Parker and the MA school Supt.,
when his child was in first grade and they refused to notify him so his child
could be opted OUT, which was and is the LAW in MA. The reason Parker refused
to leave the office (from the meeting they had scheduled in advance) was that
the Supt. refused to obey the Law and agree to inform the parents, so they could
opt their child out, rather than have him subjected to a teacher reading a book
like "King and King" to the class.
HappymommaMOORESVILLE, NC" If religion and values are used to
argue against it people are labeled as bigots.."... When they
use rude words and condemnation, yes!"I am told this is not an
attack on freedom of conscience and our rights to worship will remain intact...
but then why the boycotts and legal actions against those who disagree. Why
can't a small business owner protect their freedom of conscience and refuse
services?"...What part of "discrimination is illegal in this
State" do you not understand? Moreover, this concerns only 3-5 cases in the
USA. One was a lady who made love bouquets for 2 men for 9 years, and acted like
a dear friend of the men, but refused the wedding because her church had
campaigned against equality. Why was the Catholic church denied
funding and forced to close one of the nation's largest adoption agencies
because of their refusal to recognize gay marriage? ...No, they quit
because they would not adopt to Gay people, married or single.What
happens when religions refuse to allow marriages inside churches and temples?
.. You are repeating more nonsense. The ONLY case like that was a
church that owned a for-profit wedding facility.
I agree 100% with what Merrill Nelson has written here and it sums up my take on
the situation as well.There is no "fundamental right" to
marry for straight or gay couples.Laws are intended to protect the
most vulnerable people in society and in this case, the most vulnerable people
in society are children. That is why, as Merrill Nelson points out, for the
benefit of children, the government has a responsibility to encourage family
structures that will give a child the best chance to succeed.
Happymomma says:"Freedom of religion and freedom of conscience,
however, are guaranteed. One side is claiming discrimination against, the other
trying to protect religious freedomFreedom of religion and freedom of
conscience, however, are guaranteed."And, dear Happymomma, what
about OUR religious freedom? Doesn't matter because it differs from yours?
That, dear Happymomma, is called Hypocrisy. Go read what Jesus said about
The author of this article seems to have the same grasp of the law as the
attorneys who keep losing these marriage equality cases. Apparently they
skipped class the day equal protection was the topic.The state
simply has no more legitimate interest in the relative gender of your spouse
than it does the relative race of your spouse.
You all make a great argument for making divorce illegal. Not so
much on limiting marriage.
"No one, whether gay or heterosexual, has a "fundamental right" to a
legal status that is entirely discretionary with the state Legislature." What Mr. Nelson is saying here, whether or not he understands the implications
of it, is that the state legislature has the discretionary power to define
marriage as being only between people with blonde hair and people with brown
hair cannot marry people with red hair. Excuse me, but the logic of this is
erroneous. Life, liberty, and the pursuit of happiness, if it is not criminal
and injurious to others, cannot be contravened at the discretion of any state
This has nothing to do with marriage anymore, it has become a state vs federal
government rights issue. The federal government overstepped their bounds and
made a ruling regarding a topic which the U.S. constitution does not govern.
There is nothing about marriage or the definition of marriage in the
constitution. Therefore, it is a state issue and the federal government needs
to stop sticking their nose where it does not belong! Please note that this is
not an anti-gay marriage post, it is a pro-responsible government post. The
federal government has gone way out of it's bounds.
"The federal government overstepped their bounds and made a ruling regarding
a topic which the U.S. constitution does not govern. There is nothing about
marriage or the definition of marriage in the constitution. "Well, gear head, while you are correct that there is nothing in the
Constitution about marriage, per se, that's a moot point. The issue here
isn't marriage, and it's not state rights. It's about equality,
and specifically equal access, and there is plenty in the constitution about
that. In defending equal access for ALL the federal government is well within
its authority. In fact, it would be remiss not to act as it did. ---I find it interesting that so many people, that seem to usually
argue for small government, are actually arguing against a basic right to
marriage. So they believe a state could ban marriages. The state could make ALL
marriages illegal. They even believe a state could make marriages
for certain people, say religious people, say Mormons, illegal. They really
believe states could define marriage as legal for everyone, except, say,
Mormons. And there would be no recourse. Because, you know, states rights. Really?
"marriage" is of purely statutory origin. No one, whether gay or
heterosexual, has a "fundamental right" to a legal status that is
entirely discretionary with the state Legislature.""Gay
couples exercise all these rights without state interference and without need of
a marriage license. (No one)can declare that gay couples have a "fundamental
right" to a marriage license any more than they have a fundamental right to
workers' compensation benefits or any other statutory benefit for which
they do not qualify.""the basis for distinction is simply
the policy judgment that children do better in homes with a mother and a father
who bring their unique female and male traits, talents, insights and abilities
to the role of parenting.""This policy judgment is not
intended to denigrate gay couples or single parents who rear children — it
is merely a statement of preference intended to encourage traditional
marriage"-There's really not much else to say. Laws about
marriage aren't a "right"; they exist to protect society when
people would disregard or attack these very truths, validated by science, many
religions, and common reason itself.
I would say that we should fight this on the grounds of freedom of religion.
Mormons feel strongly about that! We all have that right, don't you think?
So, I am a gay person.I have lived 50 years now! I have believed in God all of
my life and I feel a strong religious belief that God knew exactly what He was
doing when He created gay people. I can just see people rolling their eyes! I
was meant to be with my partner of 15 years! It feels right and I know that God
approves. He would allow me to get married! So, do I have a right to live my
religious convictions? Does a Mormon have a Constitutional right to live their
religion but a gay person does not? Was the Constitution of the United States
for all people in this land or only those who believe as Mormons do? Tell me,
WHAT RIGHTS DO GAY PEOPLE HAVE?It truly is insulting. People insult our
lives as if they mean nothing! They insult our intelligence and our worth and
they insult our beliefs in God! No, this isn't right! It isn't right!
It was interesting to stumble upon this article and comment thread in the wake
of the Obergefell v. Hodges decision last week. In this comment thread, there
are quite a few claims that marriage is not a "right"... Well, actually,
in Loving v. Virginia, SCOTUS held, "...Marriage is one of the 'basic
civil rights of man,' fundamental to our very existence..." But, even
beyond that point, all citizens have a fundamental right to be "equal before
the Law"--and that includes people with whom we don't agree. I agree
with the SCOTUS decision to open civil marriage to all Americans, regardless of
orientation--but I do wish they could have addressed the issue of religious
disagreement. Frankly, I support the rights of the anti-same-sex-marriage crowd
to refuse to deal with my husband and I--and do so openly. (Thus, I know who to
boycott and where to picket!) The place where religious disagreement has NO
place is in government--because government must serve ALL citizens equally,
regardless of personal beliefs. If we deny "Equal Protection Before the
Law" to anyone--how can we claim to be a truly free country?