Utah gay marriage ban overturned, court rules

[Daybreak79]

Utah gay marriage ban overturned

 

http://www.ksl.com/?sid=30459218&nid=148&title=utah-gay-marriage-ban-overturned-court-rules&fm=home_page&s_cid=topstory

[jerome1232]

I really want this to hit the supreme court. I think it'll finally put their backs to the wall and we'll finally get to find out if states really are free to decide this or not.

I fear what the result will be.

[Backroads]

I also fear the result, but I would like a solid decision on what the states can and can't decide.

[bytor2112]

"For they that are wise and have received the truth, and have taken the Holy Spirit for their guide, and have not been deceived—verily I say unto you, they shall not be hewn down and cast into the fire, but shall abide the day."

[The Folk Prophet]

I really want this to hit the supreme court. I think it'll finally put their backs to the wall and we'll finally get to find out if states really are free to decide this or not.

I fear what the result will be.

 

You fear what the results will be, or you "know" what the results will be? :)

 

The writing's kind of on the wall.

[slamjet]

I'm waiting for the "law of unintended consequences" to kick in, like, plural marriage being legalized.  It's going to be a hoot when that whole community screaming marriage equality (no, not just the gay community, puleez!) rises up and screams "NO, that's not what we wanted!"

[jerome1232]

There's a chance it could be ruled in favor of. There's a chance justice Kennedy is a bit libertarian leaning, which may lead him to side with state rights on this issue. There's also a bigger chance justice Kennedy is a bit libertarian leaning and decide that government doesn't get to decide who gets to marry or not.

Remember, prop 8 didn't get ruled on by the supreme court, they chickened out and said the people don't have the right to bring it to court, our beloved (haha, that's sarcasm) governor who won't defend it has to.

I will hold to hope, I will continue to pray for our judges to make good judgements. I will hope they will be receptive to the spirit when making their judgements.

[jerome1232]

I'm waiting for the "law of unintended consequences" to kick in, like, plural marriage being legalized.  It's going to be a hoot when that whole community screaming marriage equality (no, not just the gay community, puleez!) rises up and screams "NO, that's not what we wanted!"

I've seen the opposite, I've seen a few liberal friends post up blogs about why monogamy is a flawed concept and etc...

[The Folk Prophet]

I'm waiting for the "law of unintended consequences" to kick in, like, plural marriage being legalized.  It's going to be a hoot when that whole community screaming marriage equality (no, not just the gay community, puleez!) rises up and screams "NO, that's not what we wanted!"

 

Hehe. You mean like the anarchist who's upset when someone shoots him in the leg?

[bytor2112]

Heavenly voice: "Brother Such and Such, please report to the Saviors office so that you may give an accounting for your mortal probation."

"So, I see you supported same sex marriage....tell me your thoughts on why you made those choices and how the Holy Spirit guided you to that decision.

" Um, well you see.....it just wasn't fair and they deserved equality and it was more loving to help them by supporting it"

"More loving than.... My love for them?"

"Well...no ..but..."

"And how did this assist them in coming unto me......by supporting that which can never lead to true happiness and peace? Did u perhaps consider the generations that would struggle to understand truth because of this grand deception? Or those that would stray because of the confusion you helped support? "

I cannot fathom the degree of shame I would have if when I give an accounting for my life I had supported something that can only deny our Brothers and sisters a safe journey home to the Father. We no doubt live in the last days and the bridegroom is at the door......as Elder McConkie wrote of future tests and trials in 1982 :

" But the vision of the future is not all sweetness and light and peace. All that is yet to be shall go forward in the midst of greater evils and perils and desolations than have been known on earth at any time.

As the Saints prepare to meet their God, so those who are carnal and sensual and devilish prepare to face their doom.

As the meek among men make their calling and election sure, so those who worship the God of this world sink ever lower and lower into the depths of depravity and despair.

Amid tears of sorrow-our hearts heavy with forebodings-we see evil and crime and carnality covering the earth. Liars and thieves and adulterers and homosexuals and murderers scarcely seek to hide their abominations from our view. Iniquity abounds. There is no peace on earth.

We see evil forces everywhere uniting to destroy the family, to ridicule morality and decency, to glorify all that is lewd and base. We see wars and plagues and pestilence. Nations rise and fall. Blood and carnage and death are everywhere. Gadianton robbers fill the judgment seats in many nations. An evil power seeks to overthrow the freedom of all nations and countries. Satan reigns in the hearts of men; it is the great day of his power."

[Just_A_Guy]

Haven't read the opinion, but NPR said the 10th Circuit based it on the individual's liberty interest in conjunction with the previously-court-determined fundamental right to marry.  If that's true, then it'll be hard to counter the argument that anyone has a constitutional right to marry anyone regardless, not only of gender, but of consanguinity, mental capacity, or age.  That sets up a real question as to why states should bother issuing "marriage licenses" at all. 

 

Think of it this way:  If SCOTUS says that everyone has a constitutional right to be permitted to hunt without restriction, why should the State continue to bother with the time and expense of issuing hunting licenses?  Hunting . . . driving . . . marriage . . . they are all activities that, at common law, the state said you couldn't do unless you had express authorization from the state.  Now, the 10th Circuit seems to be saying that the state has no right to prohibit the activity of marriage.  Fine--then licensing the activity is pointless, right?

 

Is an unlicensed marriage still a marriage?  If a state stops issuing marriage licenses, is it thereafter impossible to get--or be--married in that state?

[Backroads]

Haven't read the opinion, but NPR said the 10th Circuit based it on the individual's liberty interest in conjunction with the previously-court-determined fundamental right to marry.  If that's true, then it'll be hard to counter the argument that anyone has a constitutional right to marry anyone regardless, not only of gender, but of consanguinity, mental capacity, or age.  That sets up a real question as to why states should bother issuing "marriage licenses" at all. 

 

Think of it this way:  If SCOTUS says that everyone has a constitutional right to be permitted to hunt without restriction, why should the State continue to bother with the time and expense of issuing hunting licenses?  Hunting . . . driving . . . marriage . . . they are all activities that, at common law, the state said you couldn't do unless you had express authorization from the state.  Now, the 10th Circuit seems to be saying that the state has no right to prohibit the activity of marriage.  Fine--then licensing the activity is pointless, right?

 

Is an unlicensed marriage still a marriage?  If a state stops issuing marriage licenses, is it thereafter impossible to get--or be--married in that state?

 

 

I'm in favor of doing away with the state's business in marriage..

 

Yes, I'd say an unlicensed marriage is still a marriage, if one defines a marriage as a declaration of love and companionship before God and community.  Which I do.

 

Seriously, I love this post.  This ruling opens up far too many doors.  If that's how it will be, stop bothering with licensing.

[slamjet]

So, JAG, correct me if I'm wrong (which I'm sure you would have done anyway) taking your last post, if SCOTUS says that marriage certification cannot be limited to man and woman, does that set a precedent that can be argued that any certification cannot be limited for example a state certification to be a lawyer can no longer be limited to those who have a clean criminal record?

 

I don't think it's naive of me to see that overturning laws defining marriage are unconstitutional due to the equal protection clause is not a gay rights issue but a legal issue that will open up a whole can of worms that will be extremely difficult to unwind.

[bytor2112]

The issue to me is not so much the definition of marriage. True it is that ss marriage is not recognized in the Courts of Glory and regardless of what judicial fiat decides this issue and overrides states rights and the will of the people .....the issue to me is that the discussion has been framed to insure that two men or two women in love and married is viewed as normal, wholesome and just as valid as Mr and Mrs Bytor and how dare anyone think differently.

[pam]

This has gone back and forth a few times in Utah.  I don't consider it a done deal yet.

[Just_A_Guy]

Backroads:  Eliminating state-sanctioned marriage appeals to my libertarian instincts, but there are a lot of potential implications to this--not all of them necessarily foreseeable--and I don't like the idea of doing it rashly.  Moreover, the Church has encouraged us to protect the legal institution of the family--the Proclamation of the Family still applies--and I'm not sure our hopping on board with an "abolish legal marriage" agenda would really fit the counsel we've been given at this point.  I'm "asking questions"--uncomfortable ones, at that--but (unlike a certain ex-LDS feminist who shall remain nameless) I'm trying not to advocate any particular course of action at this point.

 

Slamjet, I have to reiterate that I haven't read the 10th Circuit opinion.  My observations were based on the idea of a liberty interest in conjunction with existing case law (I'm thinking Loving v. Virginia) which defines marriage generally as a fundamental right; and I'm not sure how traditional equal protection analysis factored into that.  I doubt it would limit a state's power to regulate anything except marriage. 

 

Equal protection jurisprudence basically asks two questions.  First, it asks whether a state law is discriminating against a "protected class".  If not, the state merely asks if the law is "rationally related" to a "legitimate government reason"--and if so, the law is permitted to stand.  But if the state is discriminating against a protected class, then depending on the nature of the class the Court will apply "intermediate scrutiny" or "strict scrutiny".  "Intermediate scrutiny" (applied to discrimination based on sex or content-neutral speech) asks whether the law substantially furthers an important government interest.  "Strict scrutiny" (discrimination based on content-based speech or race/national origin) asks whether the law is necessary and narrowly tailored to achieve a compelling government interest.

 

To apply that to your example of state bar applicants:  convicts aren't a protected class, so all you have to do is ask whether a state's requirement that a lawyer not being a convict is "rationally related" to a "legitimate government interest".  In this case, the state has a legitimate interest in making sure that lawyers are trustworthy (HA!), and it's rational to assume that barring convicts from law practice could further that goal.  So, the law passes equal protection scrutiny and is allowed to stand.  On the other hand, a state regulation that women or hispanics can't practice law would invoke a higher level of scrutiny, and would almost certainly fail traditional equal protection analysis.

[rameumptom]

It was just overturned by a judge in Indiana today, also.

[slamjet]

JAG > Thanks, I forgot about  protected class.

[slamjet]

Church's response (LDS Newsroom Linky)

 

So then this brings up the thought that can or will SCOTUS temper the ban when it comes to the free expression of one's religious liberty?  Because it seems that if SCOTUS just blanket upholds all these bans then all religions will have no choice but to perform same-sex marriages.  However, if the last couple of sessions are a gauge, then SCOTUS will most likely wimp out and give some ruling that will have everyone scratching their heads.  But (in my humble unimportant, uneducated opinion) they're going to be forced to deal with this since all these appeal courts are ruling making it ripe for review.

[Just_A_Guy]

Equal protection jurisprudence only applies to state actors, not private ones.  So denying states the right to prohibit gay marriages won't affect churches, in the short run.

 

However, where marriage is concerned, I think the next step in the judicial campaign is point to existing precedent saying that churches who administering state benefits can't discriminate (this issue has already been dealt with regarding religious charities that receive state support), and arguing that by analogy a church also shouldn't be allowed to discriminate in administering the "state benefit" of legal marriage.  Thus, conservative congregations will be prohibited from solemnizing legally-binding marriages (to which the Church will say "meh--we never needed state-solemnized marriage anyways" and point to their history of non-legally-binding polygamous marriages).

 

What'll hurt more is when similar arguments are made--and accepted--that Mormon schools should no longer be able to get federal and state funding for student grants/loans, research grants, and the like.  Once that legal precedent is in place I think the next legal objective will be stretching the argument to say that tax-exempt status is also a "state benefit" that shouldn't be applied to discriminatory institutions.  The courts may eventually be in a place where they would buy that argument; but honestly I think widespread animus towards religious conservatives will grow so rapidly that Congress will yank the Church's tax-exempt status legislatively long before the courts develop the precedental infrastructure to do it judicially.

 

The Church will be able to handle the financial blow--barely.  I've crunched some preliminary numbers on these forums before, here.  But the end result will be ruinous for other conservative churches, especially the local mom-and-pop congregations whose chapels are mortgaged to the hilt.  They will yield, or they will be crushed.

 

And of course, the race is already on--here and abroad--to cultivate a popular perception that opponents to gay marriage should be disqualified from employment in any number of fields:  photography, baking, catering, event planning/hosting, mental health, medicine, law, law enforcement, social work, education, the arts . . . and that list is only going to grow.

[Meerkatarmy]

Marriage is a legal thing declaring your love and support of each other and gaining the legal rights that go with that to non religious folk, therefore the church should have no say in same sex marriage. Our brothers and sisters have free agency they should be given the right to choose.

 

However, in the UK there is a chance churches could be made to conduct same sex marriages that is completely wrong. I believe both sides deserve respect and for some one to march in to a church and say you must marry me is not showing any respect at al. I can't see why any one would want to be mmarried by someone who is forced to do it 

[The Folk Prophet]

Our brothers and sisters have free agency they should be given the right to choose.

 

Following this logic one would have to contend, legally, for complete anarchy.

 

There are many things that "free" agency allows for that are curtailed by the laws of the land, and quite reasonably so.

[bytor2112]

Marriage is a legal thing declaring your love and support of each other and gaining the legal rights that go with that to non religious folk, therefore the church should have no say in same sex marriage. Our brothers and sisters have free agency they should be given the right to choose.

 

However, in the UK there is a chance churches could be made to conduct same sex marriages that is completely wrong. I believe both sides deserve respect and for some one to march in to a church and say you must marry me is not showing any respect at al. I can't see why any one would want to be mmarried by someone who is forced to do it 

 

 

The obvious fallacy in your assertion regarding the church not having a say is that the "church" is made up of people and people DO have a say. We could debate ad nauseum on why ss marriage is bad for society as a whole regardless of religious inclinations,...but that has been done as well on this forum.

 

The attitude that we should not warn our brothers and sisters and instead just chalk it up to agency is exactly how the adversary would want us to behave. When converted, strengthen, thy brethren.....not let them walk into a chasm from which they may not return.

[Meerkatarmy]

I knew it was a mistake posting on this thread as a gay Mormon. The difference between things that are against the law and same sex relationships is the fact things that are illegal generally hurt people or property. I know your response will be that same sex relationships hurt people but I can assure you they do not. I am loved by Christ, Heavenly Father, my partner and on the whole members of my ward and actively gay so my sexuality does not hurt me.

[The Folk Prophet]

Hmm...whether gay relations hurt other people or not aside...

 

All I said was that agency and laws of the land do not follow one another. Agency is not a good argument for legalizing something. Your reaction is sure reading a whole lot more into it than that.