Loving v Virginia is a precedent for federal judicial intervention in state
Judge Shelby's decision in KITCHEN v HERBERT was soundly based on
long-standing law and precedent. It accurately stated the law and accurately
construed and applied the US Constitution. If Butler truly believes the things
he says in this article, he has a lot to learn.
Its informative to hear scholars speak in legalese about Utah's opposition
to gay marriage, but I think many of us would like someone to explain, in plain
language, how gay unions will hurt society.Whatever you think about
gay people, wouldn't the conservative position be to give them the benefits
of stable, loving relationships?
Yeah, we know... another judge, another "rogue" decision. We hear this
tired response every time a judge makes a decision Conservatives in Utah
"Adolescent judicial immaturity", "insubordinate chutzpah",
"brazen disregard", "judicial malfeasance."It's
good to see the Deseret News and the author are committed to civility.
States are allowed to regulate marriage and determine what benefits and such
apply, they're STILL BOUND by the 14th Amendment to apply those regulates
EQUALLY to ALL US Citizens.
@furry1993 When has the right to marry someone of the same gender been a right.
Why are people just now "finding that right" in the constitution?
Marriage always has been between a man and women and government officials do not
have a right to redefine it.
Well, I see the regularly assigned prop-gay posters are the first on board as
usual. All one has to do is check out what has happened in
Massachusetts to learn about the damage gay so-called "marriage" has
done in that state. It has effected schools, churches, business, employment and
freedom of speech in wholly negative ways. I encourage everyone to take the
time to find out what has happened there.
This political science graduate is stating nothing more than opinion. His views
don't have much support in the 200+ years of American judicial tradition.
It would be helpful if the people expressing their disagreement with Judge
Shelby's decision would show some evidence that they actually grasp the key
elements of his decision, and acknowledge the legal significance of established
precedent and the application of the 14th Amendment in civil rights cases.Judge Shelby is not the first federal judge to make a sober assessment
of state laws that discriminate against gays and find them to be
unconstitutional, and, as we've just seen in Oklahoma, it won't be the
last.Shelby's decision will stand. Utah's Amendment 3 will
Now give us another article Mark on how to remove rogue judges.liberal larry: we are willing to give gays stable loving relationships through
civil unions. How will your side show tolerance towards those who favor
traditional marriage as the gold standard for society? Is tolerance a one-way
street in your world?
I am a graduate of the University of Utah, where I studied Political Science.
My view: Shelby's jurisprudence is amazing!
Those opposed still haven't filed a valid legal reason why two adults,
being minorities, cannot marry when the majority can.
This was an argument that could have been made far fewer words.It
seems this was written more to impress a college professor than make a coherent
argument to the public. Pulling out a thesaurus and using multiple meanings and
big words doesn't make an argument any more valid. Simply
said, "the judge was wrong because he didn't follow years of legal
precedent and logic."Unconvincing, in long or short form.
When the rich have so much money, why would anyone think that stealing just a
handful would hurt society? So says every bank robber. Some would agree. They
would see the bank robber's "needs" and justify him for taking
something from someone else. Others would clearly see that if everyone were
allowed to decide for himself what is "free for the taking", that
society would unravel.Judge Shelby told us that he is the law of the
land. That he would decide for the citizens of Utah what their Constitution
allows and what it restricts. He decided for himself that the recent ruling
from the Supreme Court, that States had the right to implement marriage as their
chose, was wrong, and the a dissenting opinion on that ruling was right. Judge
Shelby acts much like that bank robber who justifies robbing a bank because he
intends to do some good with the money. The 14th Amendment clearly states,
"nor deny to any person within its jurisdiction the equal protection of the
laws". The law states that marriage is between a man and a woman. It is
equally enforced in Utah.
DEAR HIGV:Is there a “right” for anyone to get married?
Not in the Constitution. The word “marriage” does not occur in the
Constitution. However, the federal government has complicated things somewhat.
According to Government Accountability Office, there are at last count over
1,100 separate laws, benefits, protections, and opportunities that are bestowed
by the federal government on married couples. So unless the Constitution only
applies to people who are Straight (i.e. heterosexual), the 14th Amendment
guarantee of equal protection under the law demands that law-abiding, taxpaying
Gay couples have the same opportunities that Straight couples have always taken
for granted.But if it will make you feel any better, marriage
equality for Gay couples will have precisely ZERO impact on Straight couples.
For people who are Straight absolutely NOTHING is changing or being
“redefined.” Straight people will continue to date, get engaged,
marry, and build lives and families together as they always have. None of that
will change when Gay couples tie the knot also.
I don't know much about the process of law, but I do know this: If this
same process had led to a decision against same sex marriage, this editorial
would not have been written. Secondly, the decision as it turned out was a great
thing for Utah and ultimately the nation.
Re: "comparatively novice judge" "adolescent judicial
immaturity"In making the above statements against Judge Shelby,
Mark Butler's timing couldn't be worse. That's because in
today's paper we also read that in Oklahoma, Judge Terrence Kern ruled
against that state's ban on same-sex marriage and, in doing so, cited
Shelby's ruling. Please note that Kern is a "senior" district judge
who has nearly 20 years on the federal bench and who was chief judge for seven
years before assuming senior status.
At least the judge who made the similar decision in Arkansas had the foresight
to know that his decision was going to be controversial and almost certainly
challenged, and didn't pretend that HIS decision was final and no stay or
appeal would be accepted, causing the rush the the alters in Utah.He
knew the decision would be appealed, so he issued his decision AND a stay until
it could be appealed and a higher court agree or disagree with his individual
decision.I think the Judge in the Arkansas case was wise. I think
the Judge in the Utah case was full of pride and his perception of his power.I think the Judge who overruled the Utah Judge allowing the stay that
eventually was granted had more wisdom than the Judge who refused it while his
decision was on appeal.IMO the US Supreme Court needs to decide this
once and for all. Until then... State decisions should be stayed awaiting the
Supreme Court decision.
Furry: Your so-called understanding of the Constitution is convoluted. The
constitution was written as it was for a lot of reasons, one being that it was
simple to understand. It takes a century of lawyers and judges getting into the
mix to make it into something only recognizable to those who think that it can
mean anything you want it to mean, regardless of the words. I sometimes ask my
children what part of "no" don't they understand and it appears
that many who are conflicted about the Constitution's meaning need the same
question asked "What is it that you don't understand about the
Constitution?" If you aren't looking 'beyond the mark' it
really is simple. Hopefully, the will of the people of the state of Utah will
be upheld in their constitutional right to define marriage.Liberal
Larry: If you don't view the actions that naturally accompany an intimate
relationship such as marriage as inconsequential to God's plan, or to the
virtues that make for a stable society, then there is absolutely nothing I could
do or say to persuade you otherwise.
"I think the Judge in the Arkansas case was wise. I think the Judge in the
Utah case was full of pride and his perception of his power."It
was the state of Utah that was full of pride. They were so overconfident in
their case that they didn't REQUEST a stay in the chance that they lost.
They didn't request a stay until AFTER the ruling. But what do you expect
when you elect political hacks as Attorney General because they have the magic R
next to their name
Mark Butler inadvertently demonstrates the old law school adage:If
you have the facts on your side, pound the facts. If you have the law on
your side, pound the law. If you have neither the facts nor law on your
side, pound the table.
The State of Utah has only itself to blame for not requesting a stay in the
original presentation of the case. And for those who want to complain about
Judge Shelby seriously.....he knew, the plaintiffs knew, the defense
knew.....there would be an appeal up the chain to higher courts, including the
SCOTUS. For those calling him arrogant I would say that you really have no idea
how the process works, or the history in our country's legal system of the
idea of judicial review. Jeepers.
Re higv:"When has the right to marry someone of the same gender been a
right. Marriage always has been between a man and women and government officials
do not have a right to redefine it."First off, I really enjoy
the polygamy reference there. Second, when has the right to marry anybody been a
right? Third, your religion, or any religion for that matter does not have a
right to define marriage for everybody else. Especially those who don't
share your religion or mine. Re: Sal"we are willing to
give gays stable loving relationships through civil unions.How will your side
show tolerance towards those who favor traditional marriage as the gold standard
for society?" Gee, I'm sure the "gays" are so happy you are
willing to give them something. Except that civil unions were never on the
table. Can't have that here in Utah. To use your side's oft stated
argument, you can still get married to somebody of the opposite sex. Allowing
the gays to marry won't change that.
Of all the many op-ed pieces the DN has published on this topic, this one is
easily the silliest. Do you really suppose that Judge Shelby just woke up one
morning and said to himself" "I think I'll legalize gay marriage
today." No. He had to decide the case before him. He had to base his
decision on the evidence and arguments presented. Read the briefs and oral
arguments from both sides, and it's difficult to see how else he could have
"If you don't view the actions that naturally accompany an intimate
relationship such as marriage as inconsequential to God's plan, or to the
virtues that make for a stable society, then there is absolutely nothing I could
do or say to persuade you otherwise."And conversely, if you
don't grasp that your personal interpretation of "God's plan"
is necessarily irrelevant to the point of law being judged (equal protection),
and that it is the _separation_ of religious doctrine from our government that
makes it possible for Mormons to be U.S. citizens along with of Jews, Muslims,
Catholics, Baptists, Hindus and Pastafarians, then there is absolutely nothing I
could do or say to persuade you otherwise. Which is really
I am impressed with the vocabulary skills of Mark. But words need to be used in
a way to make sense. William F. Buckley had this debating skill. He would use
such esoteric, obscure, complex words that his opponent had no idea what he was
saying and could not rebut his argument. In all of Mark's loguaciousness,
he did not present a really valid constitutional argument to counter the 9th and
14th Amendments or prove the claim by proponents in the case that marriage
equality harms traditional marriage. What will Mark say when higher courts
validate Shelby's decision?
A federal court today struck down Oklahoma's ban on same sex marriage.
Since the Judge Terence C. Kern addresses the very complaints of the author of
this article, I thought you would find the following of interest:"The Supreme Court has not expressly reached the issue of whether state
laws prohibitingsame-sex marriage violate the U.S. Constitution. However,
Supreme Court law now prohibits statesfrom passing laws that are born of
animosity against homosexuals, extends constitutional protection to the moral
and sexual choices of homosexuals, and prohibits the federal government from
treating opposite-sex marriages and same-sex marriages differently. There is no
precise legal label for what has occurred in Supreme Court jurisprudence
beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court
knows a rhetorical shift when it sees one.""Equal protection
is at the very heart of our legal system and central to our consent to begoverned. It is not a scarce commodity to be meted out begrudgingly or in
short portions.Therefore, the majority view in Oklahoma must give way to
individual constitutional rights."
I still have not heard a valid legal argument for gay marriage. My understanding
is that gay marriage proponents seek equality under the 14th amendment. Where
under that amendment or any other amendment or provision of the constitution
does it say that marriage between a man/man or a woman/woman relationship is a
right that every state must respect? Just because you love each other does not
make it a marriage relationship that the constitution requires every state to
Despite your views on the matter, this opinion piece is correct. Judge Shelby
recognized a "civil right" when none had been granted or recognized
before. Equating homosexuality to race fails for several reasons. The equal
protection clause and substantive due process recognized for the last century
were specifically written for race protection. At that time homosexuality was a
criminal offense. To say that their intent was to also protect homosexuals is
patently wrong. Also, Courts don't have a right to ignore the amendment
process in the Constitution and "update" the Constitution through case
law. Admittedly, many legal scholars adhere to this belief. I do not. In the
end, the SC may adhere to this theory and "update" the Constitution with
a new right that was never intentionally written into the Constitution, but it
still violates the amendment procedure and the democratic process in my opinion.
It would also set a dangerous precedence, because how many minority groups
would seek similar protection? Would LDS members get class recognition as a
protected minority? How about when we have no majority, just a plurality. Does
everyone get protected status? It would all be up to the whims of the
Re: "Loving v Virginia is a precedent for federal judicial intervention in
state marriage laws."Only to the extent the issue is
14th-Amendment racial equality. Which was decidedly NOT the issue before
Shelby.The 14th Amendment was never intended to permit unelected
activist federal judges to write their minoritarian liberal agendas into state
law. Notwithstanding, Shelby and the copycat Oklahoma federal "judge,"
elected to do what they were appointed to do -- reliably advance a liberal
political agenda. They chose to disingenuously play "gotcha" with the
American tradition of the rule of law, not men.The 14th Amendment
didn't confer on women or 18-year-olds a right to vote. It didn't
invalidate sovereign immunity. It didn't prohibit penal servitude. It
doesn't confer a right to drink on 17-year-olds. It didn't invalidate
differential taxation of American incomes. It didn't even prohibit the
denial of voting rights for inability to pay a poll tax.No trained
jurist can, then, honestly suggest that the 14th Amendment carves out some
special status for the LGBT political agenda, in violation of all pertinent
Supreme Court precedent.
"How will your side show tolerance towards those who favor traditional
marriage as the gold standard for society?"I think it's
simple. We will continue to celebrate our parents', siblings', and
friends' wedding anniversaries. We will continue to attend the weddings
that we are invited to attend. We will support our neighbors any way we can.
Most importantly, we will not decide to vote away your rights to get married.
@procuradorfiscal"Only to the extent the issue is 14th-Amendment
racial equality. "The difference between you and me is that you
believe that the 14th Amendment only deals with racial equality and I believe
it's broader in scope. The relevant section is section 1 and there is
nothing in that text...Section 1. All persons born or naturalized in
the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws....that is race
specific so I don't see why it would necessarily only apply to the matter
of interracial marriage.
RE: Steve C. Warren: “In making the above statements against Judge Shelby,
Mark Butler's timing couldn't be worse. That's because . . .
.”Not so. The actions of Judge Terrence Kern only confirm the
point made.A senior district judge with nearly 20 years on the
federal bench—which arguably is precisely why he issued an immediate stay
pending review. This is jurisprudence. Something Shelby declined to demonstrate.
That is the judicial immaturity referred to.
So is his common sense.
@ P38, on the issue of the stay, Judge Shelby 1. was not asked to stay the
decision by the State of Utah, and 2. unlike the OK judge, he did not have the
benefit of instructions from the U.S. Supreme Court that the matter should be
stayed until the 10th Circuit Court could hear the case. There was no judicial
immaturity. So please, rather than personal attacks on the judge, focus on the
CatsSomewhere in Time, UT"Well, I see the regularly assigned
prop-gay posters are the first on board as usual. All one has to do is
check out what has happened in Massachusetts to learn about the damage gay
so-called "marriage" has done in that state. It has effected schools,
churches, business, employment and freedom of speech in wholly negative ways. I
encourage everyone to take the time to find out what has happened there."--- Could you PLEASE stop posting these blatant lies every time the
subject comes up?No one is assigning posters here: but your idea
must come from the recent past, when articles on Huffington Post, for instance,
about the subject were apparently trolled by young mormons assigned to stick in
their points of view, over and over. (from my personal observation).In Massachusetts:A-- From my understanding, TWO couples moved there to
start trouble and did so.B-- Since marriage equality, the MA divorce rate
is among the very lowest, way, way lower than Utah's.C-- If it is a
liberal area, and the parents are fine with teaching kids certain things, is
that not their right?
Does anyone else feel that the endless stream of pieces criticizing this
REPUBLICAN judge, who happens to be from a bit younger generation, are all about
the DN trying to cater to the established, conservative mormon point of view?The DN belongs to a great church (albeit one with which I do not agree)
with Jesus Christ in its name.As a somewhat different type of
Christian, I do not see why the DN does not use this opportunity to help its
readers truly understand both sides. I think Jesus wants that.
Butler's comments are nicely crafted and written, mechanical, and typically
conservative - arch conservative. And utterly lacking in empathy. Butler, a
constitutional scholar must also realize that Judge Shelby's legal
arguments were in line with a long tradition of arguments made by judges (and
justices) who got out of the ivory tower of the law long enough to remember that
laws actually relate to human beings -- citizens, community members. Of course,
the state did itself no favors by rolling out a bunch of tired arguments, all of
which have already failed in court. Speaking of malfeasance and "lacking
jurisprudence", it must be said that the state was utterly lacking in its
case, arguments and procedure, distracted by the malfeasance -- indeed criminal
investigation -- of its highest legal authority. Talk about "lacking..."
@ procuradorfiscalIn all due respect, if all you can see is "an
activist judge" and a "copy cat" judge rolling out their liberal
agendas, you've probably missed the truly remarkable legal
"concepts" that the Supreme Court, via its interpretation and
advancement of the Constitution, has established and supported over its 225 year
history, including those established during the 146 years since the 14th
Amendment was ratified.
@Stephen Daedalus 11:37 a.m. Jan. 15, 2014Mark Butler inadvertently
demonstrates the old law school adage:If you have the facts on your
side, pound the facts. If you have the law on your side, pound the law.
If you have neither the facts nor law on your side, pound the table.---------------------\When I was in law school we had
another form of that adage -- both are very accurate:If you have the
facts on your side, argue the facts.If you have the law on your side,
argue the law.If you have neither the facts nor the law on your side,
insult the other side.There are several people here who try
(wrongly) to argue the Constitution and when I challenge their inaccuracies they
try to insult me. When I provide my credentials -- I graduted cum laude from
law school and have been a lawyer for over 26 years -- and ask them to provide
their credentials, I get ignored and/or they tr4y again to insult me. I guess
that shows the (lack of) strength in their positions AND the fact that they
realiZe their lack.