Wednesday, July 23, 2014

In our opinion: Decision about validity of marriages during 17-day period of chaos should be delayed for now

Deseret News editorial

Published: Thu, May 22 6:51 a.m. MDT

 Supporters of Utah's same-sex marriage ban gather at the Utah State Capitol Friday, April 11, 2014, in Salt Lake City, to stand up for \

Supporters of Utah's same-sex marriage ban gather at the Utah State Capitol Friday, April 11, 2014, in Salt Lake City, to stand up for "traditional marriage" a day after a federal appeals court heard arguments about the constitutionality of the law.

(Rick Bowmer, Associated Press)

The debate over same-sex marriage has been hotly contested in Utah since a federal district court judge struck down the state’s definition of marriage five months ago

In refusing to stay his decision, Judge Robert Shelby unleashed a chaotic situation in Utah. Although the 10th Circuit refused to stay the decision, the U.S. Supreme Court stepped in on Jan. 6, effectively overruling Shelby and the appeals court. The stay put the decision about same-sex marriage on hold “pending final disposition of the appeal” by the 10th Circuit.

On Monday, another federal district court judge here in Utah compounded the chaos of last December. Judge Dale Kimball ruled that Utah must recognize the same-sex marriages performed in the state during the 17-day period between decision and stay. However, Kimball wisely put his ruling on hold for 21 days, to allow the state time to appeal the matter to the 10th Circuit.

Letting Kimball’s decision stand, however, threatens to return Utah to the uncertain chaos of late December and early January. Shelby’s decision has put countless couples into a situation of legal limbo.

Since the Supreme Court intervened to stay that decision, all federal cases involving same-sex marriage have also been put on hold. These courts are conscious that the Supreme Court is closely watching to ensure deference to state democratic decision-making.

Written briefings and oral arguments in Utah’s case before the 10th Circuit Court have concluded. All parties are waiting for a decision by the 10th Circuit. It is widely expected that one of these cases challenging state marriage laws will return to the high court. The fact that the justices have already weighed in on the Utah appeal makes it quite plausible that Utah’s marriage law will ultimately be tested before the Supreme Court.

We believe that marriage is a matter of state law, not federal law. The issue being contested in the Shelby decision, and in Kimball’s decision, is whether same-sex marriage will be mandatorily imposed upon all states in the country. Utah and many other states believe that such a requirement is unsound as a matter of constitutional law and public policy.

Attorneys for Utah have presented a powerful case in court for the rationality of the state’s decision to favor the man-woman definition because it furthers a culture that encourages parents to put the needs of their children above their own emotional fulfillment.

Because of the very contested nature of this subject, there will be many different views about this matter. We appreciate the hardship into which couples' lives are placed by this legal chaos. In the not too distant future, the issue will be resolved by courts of appeal and by the democratic legislatures that define family law for their states.

Yet Kimball’s decision tips the scales of justice toward an ill-considered manipulation of constitutional principles and processes.

Kimball argued that, because a same-sex couple’s vow was solemnized during the 17-day period of chaos, those two people have a “vested right” that requires state recognition. The question of determining whether such a right exists under state law is a matter for state courts. Kimball should have certified that question about state law to the Utah Supreme Court.

Indeed, during the very time that Kimball was preparing his opinion, the Utah State Supreme Court on Friday halted any state action that would result in the recognition of same-sex unions under adoption law. Hence we have the Utah Supreme Court defining Utah law in one manner, and a federal district court defining Utah law in another manner.

Kimball’s decision should be appealed until there is certainty from the federal appeals courts or the United States Supreme Court on this unsettled question.

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1. John Charity Spring
Back Home in Davis County, UT,
May 21, 2014

The issue that keeps getting ignored in this debate is the fact that a bunch of judicial activists have ignored the Constitution in an effort to legislate from the bench. The Founding Fathers would turn over in their graves if they saw what is going on.

The federal judiciary has taken it upon itself to completely subvert the other two branches of the federal government, and all three branches of state governments. Essentially, a pack of rogue federal judges has established a brand of anarchy in which their will is the only thing that matters.

If laws are to have any legitimacy, they must be established in a legitimate fashion. That is not what has happened here, and it stains the creation of same sex marriage with illegitimacy.

2. Mike Richards
South Jordan, Utah,
May 21, 2014

It seems strange to me that any judge would rule on a measure that is being fast-tracked to the Supreme Court. What is his purpose? Does he think that risking a reversal on his decision will NOT hurt those who are in limbo? The Supreme Court has already ruled that STATES have the right to set the terms and conditions for marriage. The Supreme Court is certainly aware of the 14th Amendment, and yet, it told the nation that STATES have the right to define marriage. Could anyone really claim that the Supreme Court is so incompetent that it has not read all of the Amendments to the Constitution or that it misunderstands the limits to which those Amendments can be applied?

Judge Kimball needs to let the system work. Waiting does no damage, but hurrying to rule may cause hurt and heartache that could easily have been avoided had Judge Kimball thought more of the Supreme Court and of their role.

3. Northern Utahn
Northern, UT,
May 21, 2014

I'm pretty certain that in our system of checks and balances, that judges can be impeached, and are appointed, by the legislative and executive branches, respectively. It's comical that we keep hearing about "activist judges." I'm tired of "activist legislators."

4. The Real Maverick
Orem, UT,
May 21, 2014

I agree. We should delay giving citizens their constitutional rights so that we can be ruled by a vicious mob.

5. dell
San Antonio, TX,
May 21, 2014

"I'm pretty certain that in our system of checks and balances, that judges can be impeached"

Please name the last federal judge that was impeached.

Quick review of how our government works since you post implies a good bit of confusion about the matter.

Legislators are suppoesed to be activists. They write the laws.

The executive branch executes/enforces the laws on the books, though going back severl presidents it increasingly decides to write new laws or selectively enforces.

The judiciary is supposed to ensure that legislation is not unconstitutional and clarify execution of the law for the executive. Federal judges are appointed by the executive branch with senate confirmation(in that order, as opposed to your post). A federal judge could be impeached, but the process is similar to that required for a president and impeachment is for crimes, not unpopular rulings. The last 5 federal jusges impeached were for bribery, sexual assault and tax evasion.

In short the people of Utah have no direct legal avenue to change the individual, unelected federal judges that have been taking upon themselves the powers of legislatures.