Tuesday, July 22, 2014

Ruling on affirmative action ban now being argued in Utah same-sex marriage case

By Dennis Romboy, Deseret News

Published: Fri, May 2 5:57 p.m. MDT

 Plaintiffs, activists and equality supporters rally at the Utah State Capitol to show support for Judge Robert Shelbys Dec. 20th ruling on Amendment 3  in Salt Lake City Friday, Jan. 10, 2014.

Plaintiffs, activists and equality supporters rally at the Utah State Capitol to show support for Judge Robert Shelbys Dec. 20th ruling on Amendment 3 in Salt Lake City Friday, Jan. 10, 2014.

(Jeffrey D. Allred, Deseret News Archives)

SALT LAKE CITY — State attorneys in Utah's same-sex marriage fight are citing a new U.S. Supreme Court ruling that upholds Michigan's ban on using race as a factor in college admissions to bolster their case.

Lead counsel Gene Schaerr says the decision strengthens Utah's argument that voters have the right to set state law at the ballot box.

Schaerr argues in a court filing this week that the Michigan case shows voters can ban preferences and that it reinforces the importance of letting people make difficult policy choices through democratic means.

An attorney for the three gay and lesbian couples who sued Utah over its voter-approved state constitutional amendment defining marriage as between a man and a woman disagrees.

In her response filed in the 10th Circuit Court of Appeals, Peggy Tomsic wrote that the ruling "did not and could not hold that voters can deny constitutional rights." She contends that principle is true whether marriage is regulated by state ballot initiatives or through legislation.

U.S. District Judge Robert Shelby struck down Utah's marriage law last December, saying it violates equal protection and due process guarantees in the Constitution. The state appealed and the case now rests with the Denver-based 10th Circuit.

The Supreme Court ruled 6-2 last week that Michigan voters had the right to change their state constitution in 2006 to prohibit public colleges and universities from taking account of race in admissions decisions. The justices said that a lower federal court was wrong to set aside the change as discriminatory.

Justice Anthony Kennedy said voters chose to eliminate racial preferences, presumably because such a system could give rise to race-based resentment. Kennedy said nothing in the Constitution or the court's prior cases gives judges the authority to undermine the election results.

"This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it," Kennedy said.

In dissent, Justice Sonia Sotomayor said the decision tramples on the rights of minorities, even though the amendment was adopted democratically.

Schaerr contends the 10th Circuit should agree with the high court that Utah voters appropriately used their democratic rights when they "decided to preserve the man-woman definition that predates government itself."

Tomsic countered that the Supreme Court decision in the Michigan case does not change its ruling last summer in Winsdor v. U.S. that in regulating marriage, states must respect people's constitutional rights.

Contributing: Associated Press

Email: romboy@deseretnews.com, Twitter: dennisromboy; DNewsPolitics

Recommended
1. Furry1993
Ogden, UT,
May 2, 2014

Schaerr is really scrambling. I guess he knows exactly how weak his case and position really are.

2. Reflectere
Utah, UT,
May 2, 2014

It's called fortifying - not scrambling. He obviously understands his case enough to identify current rulings which enhance the argument.

3. A Scientist
Provo, UT,
May 2, 2014

Reflectere wrote:

"It's called fortifying - not scrambling. He obviously understands his case enough to identify current rulings which enhance the argument."

Yes, "fortifying the truthiness of the argument".

A sophistic technique used by those for whom truth and reality are plastic.

4. FatherOfFour
WEST VALLEY CITY, UT,
May 2, 2014

So those who previously stated that LGBT equality was nothing at all like the civil rights movement or race-based rulings are now invoking a race related argument to shore up their case? Color me surprised.

5. Willem
Los Angeles, CA,
May 2, 2014

Friends this case has been lost long ago , equality for all will be the rule in our country very soon.