Friday, Aug. 29, 2014

Frank Pignanelli & LaVarr Webb: Examining the repercussions of Judge Shelby's decision

By Frank Pignanelli & LaVarr Webb, Deseret News

Published: Sun, Jan. 5 5:16 p.m. MST

 A woman fills out a marriage license outside the county clerk's office after a federal judge ruled that Amendment 3, Utah's same-sex marriage ban is unconstitutional on Friday, December 20, 2013.

A woman fills out a marriage license outside the county clerk's office after a federal judge ruled that Amendment 3, Utah's same-sex marriage ban is unconstitutional on Friday, December 20, 2013.

(Matt Gade, Deseret News)

Much like a hangover from a rambunctious New Year's Eve party (a condition about which Frank has knowledge and LaVarr is blissfully unaware), the controversies of 2013 overshadow the deliberations of politicos in early 2014. Regardless of personal conviction, most Utahns were shocked to witness an event many considered was at best years away — local county clerks issuing marriage licenses to same-sex couples. We explore the political ramifications.

Will the decision by federal Judge Robert Shelby, and resulting actions by state and local officials on either side of the issue, have an impact on local politics and the 2014 elections?

Pignanelli: “Too much zeal offends: where indirection works” – Euripides

Gay and lesbian couples, along with supportive activists, were expected to be ecstatic in a very public manner. Also, this was a "teaching moment" for the victors to behave like the late Nelson Mandela in reaching out to their opponents to join them in an understanding of common ideals. Instead, they performed an end zone dance. Veteran politicos across the spectrum were shocked at the flamboyant and gleeful responses by many Democrat officials. There was a real perception of "rubbing the noses" of religious and community organizations in the judicial outcome. Irrespective of intentions, Democrats are now viewed as incorporating this change to social policy as a core element of ideology. In Utah, this is a big deal.

Potential Democrat nominees for the attorney general special election face an impossible choice. Agree to the demands of leftist delegates (to drop the appeals) and he/she is doomed in the general election. Conversely, a commitment to defend state law will find little sympathy with the same delegates. Democrat candidates outside Salt Lake City have the unenviable task of articulating a position to satisfy moderate Republicans, independents and liberal activists. Otherwise, the memories of Christmas 2013 will haunt the elections of November 2014.

Social conservatives must shoulder some blame for their situation. Had they been willing to support personal contractual relationships (i.e. domestic partnerships, civil unions) while maintaining opposition to marriage, the trajectory of this issue would have been very different.

Webb: Gay rights groups own the Utah Democratic Party. The state Democratic chair and the state’s most visible and ardent proponent of same-sex marriage are one and the same person — James Dabakis. The Democratic Party of Utah is in lockstep with same-sex marriage activists. Dabakis’ unrestrained disdain of Utah mainstream values and institutions could easily hurt Democrats in 2014. Mainstream and conservative Utahns can't do much about federal court decisions, but they can vote out Democrats in swing districts.

Thanks to redistricting, most Democrats in the Legislature are in safe Salt Lake City districts. But moderate Democrats who have to win Republican votes, like Salt Lake County Mayor Ben McAdams, are in a tough position.

What is the likelihood that the Court of Appeals and the U.S. Supreme Court uphold Judge Shelby's decision?

Pignanelli: Supreme Court Justice Antonin Scalia noted in his dissent (US v. Windsor) that the rationale to strike the federal Defense of Marriage Act would provide a basis to eliminate a state's ability to prohibit same-sex marriage. This is exactly what's happening in Utah and other states, and a good predictor as to the ultimate outcome. (It's always a good policy to heed the words of short, swarthy Italians.)

Webb: I can’t predict what the Supreme Court will do, but Judge Shelby’s decision not to stay his own decision and to refuse the state’s request to do so, was a remarkable act of judicial immodesty. I can understand his ruling in favor of gay marriage. But even a smidgen of humility would have required him to allow his monumental decision to be reviewed by fellow jurists at higher levels before unleashing an eruption of gay marriages. All levels and branches of government are expected to be deliberative and thorough before forcing wrenching changes on society.

All this lone, low-level federal judge did was to reject a thousand years of tradition, overturn a state constitutional amendment overwhelmingly approved by Utah voters, and threaten similar provisions in many other states. He might suffer illusions of grandeur, but he should understand that this fundamental change in the most important relationship in society — marriage — deserved additional review and discussion before taking effect.

What are some of the indirect ramifications of the decision on similar issues?

Pignanelli: The momentum to protect gay and lesbian citizens with anti-discrimination laws will slow as the marriage issue percolates in the courts. The Legislature may consider another anti-discrimination proposal — now on life support if not DOA. Similar actions in County and City governments could also be stalled.

Webb: I have many dear friends who are gay and lesbian. I care about them and understand their elation over Judge Shelby’s decision. I recognize that attitudes regarding same-sex attraction are changing rapidly, and many of the changes are positive. We ought not to discriminate in housing and employment, and young people with same-sex attraction need support, not ostracism. But we need to be wise and deliberative and not rush to change long-standing pillars of society without understanding the long-term consequences.

Endnote: Republican LaVarr Webb is a political consultant and lobbyist. Previously he was policy deputy to Gov. Mike Leavitt and Deseret News managing editor. Email: lwebb@exoro.com. Democrat Frank Pignanelli is a Salt Lake attorney, lobbyist and political adviser. Pignanelli served 10 years in the Utah House of Representatives, six years as minority leader. His spouse, D'Arcy Dixon Pignanelli, is a state tax commissioner. Email: frankp@xmission.com.

Recommended
1. Hutterite
American Fork, UT,
Jan. 5, 2014

Rights and freedoms were strengthened; a number of people made a commitment to marriage who were previously denied. Furniture, mattresses, and electronics are on sale. Things appear to have gotten better.

2. Kalindra
Salt Lake City, Utah,
Jan. 5, 2014

Many like to talk about the arrogance of Judge Shelby in not issuing a stay - but anyone who has studied law knows or should know that judges cannot rule on motions that are not before them. Following proper legal rules and procedures, Judge Shelby could not issue a stay where there was no request for one.

The true arrogance on the stay issue lies with the State of Utah and the AG's office. It was their duty to acknowledge the possibility of a decision against them and request a stay should that happen. Usually when a law is challenged, especially one that affects so many people, a stay request is filed either as a part of the request for summary judgement or shortly after the summary judgement hearing.

You can blame the failure of the AG's office on the distractions surrounding the Swallow debacle or inexperience in the AG's office or just plain arrogance in ignoring the possibility of a loss, but it is sophomoric to blame Judge Shelby for not doing the AG's job.

3. Pagan
Salt Lake City, UT,
Jan. 5, 2014

We have been seeing quite an uptick of OP pieces from the Deseret news about the 'consequences' of marriage equality.

Why no studies?

Because, we have factual examples of the repercussions of marriage equality in America. Many just choose not to acknowledge them:

*'After 5 Years of Legal Gay Marriage, Massachusetts still has the lowest state divorce rate...' - Bruce Wilson - AlterNet - 08/24/09

'Massachusetts retains the national title as the lowest divorce rate state, and the MA divorce rate is about where the US divorce rate was in 1940, prior to the Japanese bombing of Pearl Harbor.'

Ok. Ten years…

*'TEN YEARS later, 85 Percent of Massachusetts voters say NO HARM from Marriage Equality' – 09/27/13

'Massachusetts now has the lowest divorce rate in the nation, same-sex families now enjoy full legal protections…'

There has never been a factual consequence to marriage equality. It does zero harm to the 'traditional' marriage in Utah starting after 1890.

We all know what Jesus said about 'False Witness'.

4. KJB1
Eugene, OR,
Jan. 5, 2014

That's some fine whining you've got going there. How dare gay people actually be able to express joy about something...

5. 10CC
Bountiful, UT,
Jan. 5, 2014

What I saw wasn't an endzone dance, but genuine jubilation from couples at the prospect that their relationships are - even if for a short period of time - considered "equal", at least in the eyes of the law.

The morning TV news shows showing the people lined up for their certificates looked like a bunch of adults who were giddy like 4 year olds on Christmas morning. For many couples - and their loved ones who were allowed to know about their beaming change in status - the Christmas of 2013 will always be known as a "Christmas Miracle".

Of course there will be a reverberation - we see it here every day. The only question is how long it will take for the hearts of those opposed to be softened, and recognition of true equality to appear.