Wednesday, Aug. 27, 2014

In our opinion: The debate over the legality of requiring same-sex marriage has only just begun

Deseret News editorial

Published: Tue, May 13 12:00 a.m. MDT

 The key question in the debate over the definition of marriage is about who shall decide. Will it be the people, through democratic processes? Or will it be by a federal district court judge? The legal debate has only just begun.

The key question in the debate over the definition of marriage is about who shall decide. Will it be the people, through democratic processes? Or will it be by a federal district court judge? The legal debate has only just begun.

(Shutterstock)

The key question in the debate over the definition of marriage is about who shall decide. Will it be the people, through democratic processes? Or will it be a federal district court judge asserting a constitutional right to a practice that remains deeply divisive within our nation?

Those who believe that same-sex marriage will be mandatorily imposed across all the United States are misreading key legal precedents and the careful approach to constitutional jurisprudence by appellate courts and the U.S. Supreme Court.

The debate over the legality of requiring same-sex marriage has not ended: it’s only just begun.

Last month, a three-judge panel of the 10th Circuit Court of Appeals was the first to hear arguments in the cases arising in Utah and in Oklahoma. A decision by the panel is pending.

On Tuesday, a panel of the 4th Circuit Court of Appeals, in Richmond, will consider a similar case in Virginia. As in Utah and Oklahoma, a federal judge struck down a Virginia vote that marriage remain between a man and a woman. Other cases are pending in the 5th Circuit (Texas), the 6th Circuit (Kentucky, Michigan, Ohio and Tennessee), and the 9th Circuit (Nevada).

The district court judges who have struck down these laws point to the Supreme Court’s ruling in June 2013 that voided the federal Defense of Marriage Act.

But as we noted in December, following the same-sex marriage decision in Utah by Judge Robert Shelby, “The Windsor case, however, pointedly did not impact state laws defining marriage. Indeed, in the Windsor case, Justice Anthony Kennedy, writing for the court, reasoned that ‘the tradition of recognizing and accepting state definitions of marriage’ was a central plank in the Supreme Court’s decision that the federal government could not, through the Defense of Marriage Act, undercut the state of New York’s definition of marriage.”

It is almost certain that one of the pending appellate court decisions regarding the right of a state to define marriage will again return to the Supreme Court. And four of the current nine justices are almost certain to uphold laws, such of those of Utah or Oklahoma or Virginia, that define marriage in the traditional manner.

The key vote, many legal observers believe, lies with Kennedy himself. In an April 22 decision on an affirmative action case, Schuette v. BAHM, Kennedy spoke at great length about the need to leave controversial matters in the hands of the electorate. A decade ago, the high court ruled that affirmative action programs by state entities were permissible; now it said that they were not required.

“Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate …, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process,” Kennedy wrote for the court.

He continued, speaking powerfully about the importance of democracy: “The idea of a democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of this Nation and its people.”

Recommended
1. Roland Kayser
Cottonwood Heights, UT,
May 13, 2014

Had the right to an interracial marriage been left to voters, it would still be illegal in many southern states.

2. Karen R.
Houston, TX,
May 13, 2014

So the DN is counting on SCOTUS saying, "Sure, you're denying a group their equal rights with no rational basis, but it really isn't our place to interfere. You all do what you want. We'll be over here clipping out the portions of the U.S. Constitution that are a bit problematic for you."

I agree that it would be best for each state to decide on its own to rescind these laws. It certainly would be better for business. And perhaps it will be business concerns that give politicians the cover they need to do the right thing. Like Governor Brewer in AZ: She was able to veto the ill-advised "religious freedom" law by saying "I will always do what's best for my state."

I think it will be this way for religions too. If they want to continue to attract converts, at least here in the U.S. - or stop losing them - they're going to have to do what's best for their "business."

3. The Real Maverick
Orem, UT,
May 13, 2014

I didn't even read the article but I'm guessing it's the same nonsense as we have read hundreds of times in past Dnews articles.

People should decide, not judges. States rights. Bla bla. Children are raised better if the parents are biological. Bla bla. Maybe some completely bogus discredited study will be cited. Blast Obama or Harry Reid.

And that's a wrap!

4. Really???
Kearns, UT,
May 13, 2014

I think it's time I stop reading the Deseret News. It's not healthy to be constantly reminded about how opposed the editorial board is to me having basic rights that would lead to real happiness in this life. While there are so many people sincerely trying to reach out and understand what it means to be homosexual in this community, you continue to publish articles that undermine those attempts. Don't you realize that your words continue to compel people to keep us as strangers in our own churches, neighborhoods, and homes.

I am saddened by this fight you continue to wage against a group of people who have been marginalized for far too long. Can't you please remember that these are people--children of God--who deserve a break from the rhetoric that divides us?

5. There You Go Again
Saint George, UT,
May 13, 2014

"...The key question in the debate over the definition of marriage is about who shall decide. Will it be the people, through democratic processes? Or will it be a federal district court judge asserting a constitutional right to a practice that remains deeply divisive within our nation?...".

Why stop there?

The DN editorial is dismissive about a federal district court judge.

Yet the DN editorial gives deference to another unelected lawyer's single vote.

In both cases, the problem is unelected lawyers making decisions that affect all of us.

It appears that the age old axiom of where one stands on an issue depends upon whose ox is being gored continues to be the golden rule.