Posted By Eric Ethington on December 22, 2013
**Article was originally written for Utah Political Capitol
Friday afternoon, Judge Robert J. Shelby shocked the state and nation when he lifted the ban on same-sex marriage by overturning Utah’s Amendment 3 to the state’s constitution, ruling it unconstitutional and in violation of the equal protection and due process guarantees of the United States Constitution.
It is the opinion of Utah Political Capitol that Shelby was correct in his decision.
Like all amendments to the state constitution, Amendment 3 was approved by the citizens of Utah at the ballot box with just over 65 percent approval. The amendment, simply reading “Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect,” and preemptively denied same-sex couples from ever receiving anything close to the rights of heterosexual couples in Utah.
For this reason, many conservative organizations who supported Amendment 3 are claiming that a federal, activist judge, has usurped the will of the people.
Indeed, this is true. The will of the citizens of Utah (at least, their will from 9 years ago) has been undercut—but not by an “activist judge,” but by the law.
In 2004, the Massachusetts courts had just ruled gay marriage legal in that state. Identity politics (politics featuring an “us vs. them” mentality) were in full swing nationally during the Bush vs. Kerry election, and conservative states were rushing to try and shore up their own laws to prevent something similar from happening in their state. It has has since been revealed this was a tactic employed by members of the Bush re-election campaign in an attempt to get social conservatives out to the voting booths in higher numbers.
And, so, Amendment 3, was born and voted into law. But the question that now arises is whether or not Utah voters, or the State Legislature for that matter, ever had the right to vote on whether or not LGBT Utahns should receive their full rights as citizens.
It is our firm belief that in our representative democracy, the will of the people should generally be followed. However, as the old saying goes, “Democracy is two wolves and a lamb voting on what to have for lunch,” and within the constitution the judiciary is in place to ensure the rights of the lamb are never trampled by the wolves. The will of the people must be set aside when the tyranny of the majority steps on the rights of individuals who seek nothing more than life, liberty, and the pursuit of happiness.
As Judge Shelby put it, “[The wording of Amendment 3] suggests that the imposition of inequality was not merely the law’s effect, but its goal (emphasis added)… Amendment 3 thereby preemptively denied rights to gay and lesbian citizens of Utah that they may have already had under the Utah Constitution.”
That same constitutional principle of equal protection and due process is what granted the vote to women, to people of color, and is also what prevented nationwide votes on whether to ban religions such as the Church of Jesus Christ of Latter Day Saints in an age when it surely would have passed.
Opponents, such as the conservative lobbyist group Sutherland Institute, are arguing that there is definitive proof same-sex couples marrying harms the “tradition” of one man and one woman marriages, and further proof that same-sex couples make bad parents, and that the purpose of marriage between one man and one woman is to encourage child bearing.
Yet, as equal marriage for gay couples has been debated in courts across the country over the last decade, not once have opponents managed to produce any evidence of such claims. Judge Shelby asked the state’s lawyer, “Is it the state’s position that it would be constitutional, if the state chose to do so, to enact a regulation or law requiring that individuals who wish to marry submit to fertilization testing to prove that they’re capable of procreation? Is that constitutional?” The state lawyer could only answer that no, that would not be constitutional. The California Supreme Court, when they were hearing the case there, asked the attorney for Proposition 8 what harm gay marriage does to straight marriage. “I don’t know,” was the reply.
In no court case across the country have any of the arguments we hear daily against gay marriage from lobbyists, think tanks, or pundits hold up in court. This can only lead us to conclude that such arguments are little more than bad public relations.
Because we honor the United States Constitution, we must honor the ideals enshrined within it of due process and equal protection. These ideals require that our government be fair to all and give equal access to the rights and liberties afforded to us by this great nation. These ideals tell we the people that if you work hard and contribute to society, you can expect that you will be treated fairly. Indeed, these ideals tell the world that there will be equality to all with prejudice towards none.
Our state, nation, and private institutions provide several advantages to legally married couples. Citizens with legally recognized marriages receive tax breaks, are able to avoid the pitfalls of inheritance laws, are guaranteed access to insurance benefits, visit spouses in the hospital and make medical decisions, make funeral arrangements, receive fair separation of assets in a divorce, sue on behalf of a spouse, and much, much more. By denying these rights to upstanding citizens who happen to be homosexual is a clear violation of these couples’ right to equally engage their government.
The tyranny of the majority clearly violated the rights of the minority in the case of Amendment 3, and it is clear that the Judge Shelby considered the law, and not the fleeting emotions of the day, in his logical and reasoned position. This was not the response of an “activist judge,” but rather the type of fair ruling we should expect from our judicial branch. This check on the legislative branches power is exactly what we should admire in our state and nation.
And so, Utah Political Capitol applauds Judge Shelby for the courage to stand up to a public that may be angered by his decision because, after all, he did exactly what we demand he do—ensured that all are treated justly. After all, you don’t have to agree with gay marriage, in fact you can think whatever you want about it. Religions can preach whatever they wish, and set any requirements they wish for the marriages they perform. Freedom of Religion has remained intact. But whatever we might think, whatever a religion might believe, it should have no bearing on whether two loving adults are able to get married in a courthouse.
Follow Author Eric Ethington on Twitter @EricEthington