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My view: Same-sex marriage will likely be reversed

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  • Schnee Salt Lake City, UT
    Jan. 3, 2014 12:50 a.m.

    "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.

  • ChuckGG Gaithersburg, MD
    Jan. 3, 2014 2:04 a.m.

    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 of either.

  • Chilidog Wheeling, IL
    Jan. 3, 2014 4:57 a.m.

    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.

  • JMT Springville, UT
    Jan. 3, 2014 6:18 a.m.

    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.

  • JoeBlow Far East USA, SC
    Jan. 3, 2014 6:33 a.m.

    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 or another.

  • Ranch Here, UT
    Jan. 3, 2014 7:00 a.m.

    @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.

  • happy2bhere clearfield, UT
    Jan. 3, 2014 7:20 a.m.

    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 example.

  • isrred South Jordan, UT
    Jan. 3, 2014 7:23 a.m.

    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.

  • Kalindra Salt Lake City, Utah
    Jan. 3, 2014 7:33 a.m.

    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.

  • high school fan Huntington, UT
    Jan. 3, 2014 7:36 a.m.

    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.

  • EDM Castle Valley, Utah
    Jan. 3, 2014 7:47 a.m.

    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.

  • UtahBlueDevil Durham, NC
    Jan. 3, 2014 7:50 a.m.

    ""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.

  • Hugh1 Denver, CO
    Jan. 3, 2014 7:53 a.m.

    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 protection" guarantees.

  • Open Minded Mormon Everett, 00
    Jan. 3, 2014 7:56 a.m.

    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.

  • Kalindra Salt Lake City, Utah
    Jan. 3, 2014 8:16 a.m.

    @ 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.

  • KJB1 Eugene, OR
    Jan. 3, 2014 8:18 a.m.

    Show me one heterosexual family that will forced to forced to split up once same-sex marriage becomes legal. Just one.

  • Hutterite American Fork, UT
    Jan. 3, 2014 8:34 a.m.

    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.

  • one vote Salt Lake City, UT
    Jan. 3, 2014 8:54 a.m.

    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.

  • Chilidog Wheeling, IL
    Jan. 3, 2014 9:03 a.m.

    I predict that the 10th will uphold Shelby's ruling and the supremes will NOT grant cert.

  • procuradorfiscal Tooele, UT
    Jan. 3, 2014 9:04 a.m.

    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.

  • ChuckGG Gaithersburg, MD
    Jan. 3, 2014 9:09 a.m.

    @ 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.

  • Christopher B Ogden, UT
    Jan. 3, 2014 9:09 a.m.

    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"

  • CHS 85 Sandy, UT
    Jan. 3, 2014 9:09 a.m.

    Are there any more straws to grasp at?

  • windsor City, Ut
    Jan. 3, 2014 9:32 a.m.

    @ 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.

  • Steve C. Warren WEST VALLEY CITY, UT
    Jan. 3, 2014 9:32 a.m.

    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?

  • CHS 85 Sandy, UT
    Jan. 3, 2014 9:34 a.m.

    @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?

  • Mike Richards South Jordan, Utah
    Jan. 3, 2014 9:39 a.m.

    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.

  • CHS 85 Sandy, UT
    Jan. 3, 2014 9:40 a.m.

    @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?

  • Mayfair City, Ut
    Jan. 3, 2014 9:45 a.m.

    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.

  • Stalwart Sentinel San Jose, CA
    Jan. 3, 2014 9:47 a.m.

    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.

  • atl134 Salt Lake City, UT
    Jan. 3, 2014 9:49 a.m.

    @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?

  • The Real Maverick Orem, UT
    Jan. 3, 2014 9:52 a.m.

    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?

  • Schnee Salt Lake City, UT
    Jan. 3, 2014 9:53 a.m.

    @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?

  • Ranch Here, UT
    Jan. 3, 2014 10:07 a.m.

    @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?

  • Willem Los Angeles, CA
    Jan. 3, 2014 10:32 a.m.

    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!

  • Ken Sandy, UT
    Jan. 3, 2014 10:37 a.m.

    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?

  • Pops NORTH SALT LAKE, UT
    Jan. 3, 2014 11:37 a.m.

    "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 couples.

  • Schnee Salt Lake City, UT
    Jan. 3, 2014 11:38 a.m.

    @Ken
    Neither 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.

  • Really??? Kearns, UT
    Jan. 3, 2014 12:05 p.m.

    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.

  • wrz Phoenix, AZ
    Jan. 3, 2014 12:13 p.m.

    @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.

  • Ken Sandy, UT
    Jan. 3, 2014 12:18 p.m.

    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.

  • m.g. scott clearfield, UT
    Jan. 3, 2014 12:31 p.m.

    Re: ChuckGG
    Your 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.

  • wrz Phoenix, AZ
    Jan. 3, 2014 12:45 p.m.

    @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.

  • Irony Guy Bountiful, Utah
    Jan. 3, 2014 12:48 p.m.

    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.

  • m.g. scott clearfield, UT
    Jan. 3, 2014 1:11 p.m.

    wrz

    Thank 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.

  • Chilidog Wheeling, IL
    Jan. 3, 2014 1:47 p.m.

    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, so sad.

  • Ranch Here, UT
    Jan. 3, 2014 2:16 p.m.

    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?

  • Mack2828 Ft Thomas, KY
    Jan. 3, 2014 2:42 p.m.

    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.

  • ChuckGG Gaithersburg, MD
    Jan. 3, 2014 3:52 p.m.

    @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 Shelby's findings.

  • wool over eyes SALT LAKE CITY, UT
    Jan. 3, 2014 4:14 p.m.

    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 isn't there.

  • bobdc6 park city, UT
    Jan. 3, 2014 4:19 p.m.

    "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.

  • mark Salt Lake City, UT
    Jan. 3, 2014 4:25 p.m.

    Wow, and with that weak argument appellate lawyer Merrill Nelson loses his case.

  • LiberalJimmy Salt Lake City, UT
    Jan. 3, 2014 4:26 p.m.

    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.

  • JeffreyRO555 Auburn Hills, MI
    Jan. 3, 2014 4:33 p.m.

    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.

  • ecorso Penasco, NM
    Jan. 3, 2014 5:03 p.m.

    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.

  • paulflorez Sandy, UT
    Jan. 3, 2014 5:03 p.m.

    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 discriminate.

  • micawber Centerville, UT
    Jan. 3, 2014 5:11 p.m.

    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.

  • Noodlekaboodle Poplar Grove, UT
    Jan. 3, 2014 5:17 p.m.

    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?

  • Little Andy Tremonton, UT
    Jan. 3, 2014 5:32 p.m.

    Any and all arguements will never be agreed upon by everyone. We will all someday be judged by a higher court..

  • Chilidog Somewhere, IL
    Jan. 3, 2014 5:51 p.m.

    Little Andy, I thought that Judge Wapner retired.

  • Ariz Madison, AL
    Jan. 3, 2014 5:54 p.m.

    "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.

  • Evo1 USA, FL
    Jan. 3, 2014 5:56 p.m.

    @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.

  • Normal Guy Salt Lake City, UT
    Jan. 3, 2014 5:59 p.m.

    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.

  • DeseretDebbie Corona, CA
    Jan. 3, 2014 6:04 p.m.

    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.

  • FreedomGuy Salt Lake City, UT
    Jan. 3, 2014 6:06 p.m.

    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."

  • Independent Cuss Waldoboro, ME
    Jan. 3, 2014 6:22 p.m.

    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.

  • DavidNL Holladay, UT
    Jan. 3, 2014 6:34 p.m.

    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.

  • Bob K portland, OR
    Jan. 3, 2014 6:35 p.m.

    The Real Maverick
    Orem, UT
    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?

    --- 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.

  • AkaiKoru Gladstone, Clay, MO
    Jan. 3, 2014 6:36 p.m.

    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.

  • bfried68 Travis, TX
    Jan. 3, 2014 6:54 p.m.

    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!

  • bandersen Saint George, UT
    Jan. 3, 2014 7:19 p.m.

    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!

  • Normal Guy Salt Lake City, UT
    Jan. 3, 2014 7:25 p.m.

    @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.

  • Danny Jackson Ogden, UT
    Jan. 3, 2014 7:26 p.m.

    @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 appeal won.

  • Normal Guy Salt Lake City, UT
    Jan. 3, 2014 7:27 p.m.

    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.

  • Henry Drummond San Jose, CA
    Jan. 3, 2014 7:27 p.m.

    I have some good news and some bad news:

    Good News
    You 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 News
    You are not going to overturn this ruling by making arguments the Supreme Court has already rejected.

  • byu law student usa, UT
    Jan. 3, 2014 7:33 p.m.

    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.

  • SoCalChris Riverside, CA
    Jan. 3, 2014 7:49 p.m.

    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.

  • The Judge Kaysville, UT
    Jan. 3, 2014 7:59 p.m.

    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.

  • AllBlack San Diego, CA
    Jan. 3, 2014 8:15 p.m.

    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.

  • A Nonny Moose LEHI, UT
    Jan. 3, 2014 8:22 p.m.

    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 completely blind.

  • ender2155 Cottonwood Heights, UT
    Jan. 3, 2014 8:30 p.m.

    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.

  • equal protection Cedar, UT
    Jan. 3, 2014 8:32 p.m.

    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 enjoined
    measure 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.

  • wrz Phoenix, AZ
    Jan. 3, 2014 8:38 p.m.

    @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, CA

    The 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.

  • Ernest T. Bass Bountiful, UT
    Jan. 3, 2014 8:49 p.m.

    This just makes me cringe.
    You are on the wrong side of history and makes you look foolish.

  • Meckofahess Salt Lake City, UT
    Jan. 3, 2014 8:49 p.m.

    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.

  • Meckofahess Salt Lake City, UT
    Jan. 3, 2014 8:55 p.m.

    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.

  • Amormonperson Alhambra, CA
    Jan. 3, 2014 8:56 p.m.

    I don't support gay marriage.

  • equal protection Cedar, UT
    Jan. 3, 2014 9:03 p.m.

    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.

  • Miss Piggie Phoenix, AZ
    Jan. 3, 2014 9:13 p.m.

    @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.

  • equal protection Cedar, UT
    Jan. 3, 2014 9:19 p.m.

    @Meckofahess
    Salt 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 Equality
    San 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.

  • Karen R. Houston, TX
    Jan. 3, 2014 9:34 p.m.

    @ 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."

  • Tyler D Meridian, ID
    Jan. 3, 2014 10:01 p.m.

    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.

  • RichLussier Columbia, SC
    Jan. 3, 2014 10:16 p.m.

    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 Colorado City.

  • patriot Cedar Hills, UT
    Jan. 3, 2014 10:35 p.m.

    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.

  • A Quaker Brooklyn, NY
    Jan. 3, 2014 11:04 p.m.

    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 animus.

  • rightascension Provo, UT
    Jan. 3, 2014 11:12 p.m.

    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.

  • rightascension Provo, UT
    Jan. 3, 2014 11:16 p.m.

    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.

  • haggie Visalia, CA
    Jan. 3, 2014 11:27 p.m.

    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.

  • LiberalJimmy Salt Lake City, UT
    Jan. 3, 2014 11:29 p.m.

    @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.

  • Trouble Vancouver, WA
    Jan. 3, 2014 11:51 p.m.

    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!

  • 2close2call Los Angeles, CA
    Jan. 3, 2014 11:58 p.m.

    "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 others!

  • Starry starry night Palm Springs , CA
    Jan. 4, 2014 12:20 a.m.

    "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 fiction.

  • TheNewThirdWord West Linn, OR
    Jan. 4, 2014 1:17 a.m.

    "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."

  • DavidNL Holladay, UT
    Jan. 4, 2014 1:52 a.m.

    @ 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.

  • Curmedgeon Bountiful, UT
    Jan. 4, 2014 1:54 a.m.

    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).

  • TheNewThirdWord West Linn, OR
    Jan. 4, 2014 2:03 a.m.

    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?

  • 2nd lantern Payson, UT
    Jan. 4, 2014 3:36 a.m.

    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 writer
    by 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)

  • Tekakaromatagi Dammam, Saudi Arabia
    Jan. 4, 2014 4:28 a.m.

    @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.

  • get her done Bountiful, UT
    Jan. 4, 2014 4:29 a.m.

    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.

  • Res Novae Ashburn, VA
    Jan. 4, 2014 5:55 a.m.

    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.

  • Mlawrence Salt Lake City, UT
    Jan. 4, 2014 6:00 a.m.

    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.

  • Cats Somewhere in Time, UT
    Jan. 4, 2014 7:09 a.m.

    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.

  • Crossfire5 Salt Lake City, UT
    Jan. 4, 2014 7:16 a.m.

    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.

  • PolishBear Charleston, WV
    Jan. 4, 2014 7:21 a.m.

    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?

  • sycamore West Point, UT
    Jan. 4, 2014 7:35 a.m.

    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 nation.

  • mark Salt Lake City, UT
    Jan. 4, 2014 7:41 a.m.

    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?

  • Saguaro Scottsdale, AZ
    Jan. 4, 2014 7:54 a.m.

    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.

  • collegestudent25 Cedar City, UT
    Jan. 4, 2014 7:57 a.m.

    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.

  • Meckofahess Salt Lake City, UT
    Jan. 4, 2014 8:12 a.m.

    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?

  • Meckofahess Salt Lake City, UT
    Jan. 4, 2014 8:26 a.m.

    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.

  • SoCalChris Riverside, CA
    Jan. 4, 2014 9:19 a.m.

    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!

  • watchman Salt Lake City, UT
    Jan. 4, 2014 9:25 a.m.

    I'm with Merrill. He makes more sense to me than the several commentors here.

  • RanchHand Huntsville, UT
    Jan. 4, 2014 9:27 a.m.

    @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.

  • Big Bubba Herriman, UT
    Jan. 4, 2014 9:56 a.m.

    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.

  • Brer Rabbit Spanish Fork, UT
    Jan. 4, 2014 10:17 a.m.

    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.

  • dragon12 Salt Lake City, UT
    Jan. 4, 2014 10:25 a.m.

    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 are changing.

  • Pardon-me-twice Tooele, UT
    Jan. 4, 2014 10:35 a.m.

    I think not that the New Testament has been reversed Romans 1......

  • desert Potsdam, 00
    Jan. 4, 2014 11:17 a.m.

    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.

  • MARTinNJ Maplewood, NJ
    Jan. 4, 2014 11:23 a.m.

    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.

  • Informed Voter South Jordan, UT
    Jan. 4, 2014 11:29 a.m.

    The writer assumes the courts will follow the law, which is a huge assumption.

  • Open Minded Mormon Everett, 00
    Jan. 4, 2014 11:31 a.m.

    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 there?

  • Mack2828 Ft Thomas, KY
    Jan. 4, 2014 11:50 a.m.

    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.

  • waikiki_dave Honolulu, HI
    Jan. 4, 2014 12:42 p.m.

    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.

  • Big Bubba Herriman, UT
    Jan. 4, 2014 1:03 p.m.

    @ 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.

  • The Last Word South Jordan, UT
    Jan. 4, 2014 1:03 p.m.

    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.

  • TriciaCT Trumbull, CT
    Jan. 4, 2014 2:37 p.m.

    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 Frazier University.

  • skeetaro Boise, ID
    Jan. 4, 2014 2:43 p.m.

    @ "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.

  • Xemstra perry hall, MD
    Jan. 4, 2014 2:57 p.m.

    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.

  • James Whistler Chicago, IL
    Jan. 4, 2014 2:58 p.m.

    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 decision.

  • Happymomma MOORESVILLE, NC
    Jan. 4, 2014 5:45 p.m.

    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.

  • Demiurge San Diego, CA
    Jan. 4, 2014 6:57 p.m.

    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 arguments.

  • Pagan Salt Lake City, UT
    Jan. 4, 2014 7:15 p.m.

    Title: ‘My view: Same-sex marriage will likely be reversed’

    Sure.

    Just tell it to the other x17 states too.

    Ok? :)

  • I M LDS 2 Provo, UT
    Jan. 4, 2014 7:28 p.m.

    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!

  • ender2155 Cottonwood Heights, UT
    Jan. 4, 2014 8:20 p.m.

    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.

  • Baccus0902 Leesburg, VA
    Jan. 4, 2014 8:47 p.m.

    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

  • Cougsndawgs91 West Point, UT
    Jan. 4, 2014 10:24 p.m.

    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".

  • Outside-View Federal Way, WA
    Jan. 4, 2014 10:31 p.m.

    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 will confirm.

  • TriciaCT Trumbull, CT
    Jan. 4, 2014 11:35 p.m.

    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.

  • Bob K portland, OR
    Jan. 5, 2014 3:16 a.m.

    Happymomma
    MOORESVILLE, 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.

  • mpo South Jordan, UT
    Jan. 5, 2014 7:37 a.m.

    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.

  • RanchHand Huntsville, UT
    Jan. 5, 2014 8:21 a.m.

    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 hypocrites.

  • skrekk Dane, WI
    Jan. 5, 2014 9:47 a.m.

    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.

  • the old switcharoo mesa, AZ
    Jan. 5, 2014 10:21 a.m.

    You all make a great argument for making divorce illegal.

    Not so much on limiting marriage.

  • ecorso Penasco, NM
    Jan. 5, 2014 1:05 p.m.

    "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 legislature.

  • Gearhead Layton, UT
    Jan. 5, 2014 3:36 p.m.

    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.

  • mark Salt Lake City, UT
    Jan. 5, 2014 4:31 p.m.

    "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?

  • Jamescmeyer Midwest City, USA, OK
    Jan. 7, 2014 7:01 a.m.

    "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.

  • RFLASH Salt Lake City, UT
    Jan. 9, 2014 5:30 p.m.

    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!

  • Eriks Richmond, VA
    July 1, 2015 8:15 p.m.

    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?