Just a tiny figure, rigid and restrained, blue eyes filled with pain…

The decision of the Supreme Court to grant a stay of same-sex marriages in Utah shouldn’t really come as a great surprise, whatever the actual merits of the stay application.

The attorneys from the Utah AG’s office have shown no particular signs of competence. Take, for example this passage from Judge Shelby’s decision denying the State a stay on December 23:

The court had a telephone conversation with counsel from both parties a few hours after it issued its order. The State represented to the court that same-sex couples had already begun marrying in the Salt Lake City County Clerk’s Office and requested to the court to stay its Order of its own accord. The court declined to issue a stay without a written record of the relief the State was requesting, and asked the State when it was planning to file a motion. The State was uncertain about its plans, so the court advised the State that it would immediately consider any written motion as soon as it was filed on the public docket.

Now, that all sounds fairly innocuous but, although I’m not a constitutional lawyer, I’ve been in and out of a few court rooms in my day, and those last two sentences are like a silk-wrapped brick around the ears. When a judge politely asks you exactly when you were planning on actually filing the motion you are seeking, the correct answer is never, ever, “We’re not sure”. My lawyers call that a CLM.

Rachel Maddow blamed it on incompetence, and I don’t disagree. However, I suspect there may also have been an element of hubris, a misplaced confidence that Shelby (National Guard, Desert Storm, the United States Army Achievement Medal and the National Defense Service Medal; a BA from Utah State and a Juris Doctorate from University of Virginia; a law firm practice in commercial litigation and personal injury; a registered Republican with a wife and two kids, who was endorsed by Orrin Hatch and Mike Lee for his qualifications and his “unwavering commitment to the law” when he was appointed to the District Court, if you believe the wikipedia) wouldn’t do anything so silly as letting the gays get married. Not in Utah, surely.

The AG’s office has spent the last two weeks desperately trying to stick the ferret back in the bag where the ferret don’t want to go. Their stay application to the Supreme Court (which you can find here, along with the couples’ response here) parroted the usual guff – that the same sex marriages occurring in Utah are an “affront” to the rational interest of the State in banning same-sex marriage, because the ban somehow makes straight, married people have more babies, and that the couples seeking to be married are seeking a new right called “same-sex marriage”, rather than the established right of “marriage” which right, they note, the gays are perfectly free to use as long as they marry someone whose genitals revolt them, like in the bible.

Still, on one front they are right – this is a question that the Supreme Court needs to decide and, until they do so, the better position is probably to preserve the pre-decision status quo in Utah, no matter how touching the photos of gay Utahnanians getting hitched, or how entertaining the freakout by the godbotherers about the gays touching marriage and getting dirty fingerprints all over it.

With the stay issue out of the way, one would like to think that we might be able to get back to talking about the substance of Shelby’s decision, at least until that Duck Dynasty guy gets caught cottaging or one of Mitt Romney’s grandkids turns out to be asian.

[I’ve put the illustration for this post below the fold, for this is a family blog, and I don’t want the sight of two naked breasts to scare the horses.]

———-

sacred_and_profane_love-large

Shelby’s decision is a good read – simple, cogent prose which makes a no nonsense argument for justice and equal access to rights provided to all citizens under the Constitution.

Shelby first spends a few pages talking about the plaintiff couples – Derek Kitchen and Moudi Sbeity, who own a business making hummus for Utah restaurants, and who look very cute together; Karen Archer and and Kate Call, a doctor and a businesswoman who flew to Iowa to get married on their own, standing next to their suitcases, because Karen is very ill; and Laurie Wood and Kody Partridge, English teachers in love, who like drinking pina coladas in the rain – nice, ordinary people who love each other.

Next, he looks at the Supreme Court decision in Windsor, which overturned DOMA. In Windsor, the Supreme Court said that the federal government cannot deny the benefits of marriage to a same-sex couple married under State law, as this violates their Fifth Amendment rights not to be “deprived of life, liberty, or property, without due process of law”.

Utah’s counsel argues that Windsor is therefore all about states’ rights (’cause you know, what isn’t?), even though the Tenth Amendment isn’t mentioned once in Windsor, and so “the federal government cannot intrude upon a state’s decision not to recognize same sex marriage”.

Shelby says, however, that while states’ rights are important, both state statutes and state constitutions are subject to the Fourteenth Amendment requirement that they not “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Kitchen

“The court agrees with Justice Scalia…”. Still makes me laugh.

Next, Shelby deals with Baker v Nelson, a 1971 case in which two men from Minnesota argued that the State was constitutionally required to allow them to marry. A Minnesota court found that the law didn’t violate the Fourteenth Amendment, and the Supreme Court summarily dismissed the matter “for want of a substantial federal question”.

Utah argues that Shelby is bound to follow the Baker decision, and dismiss Kitchen as there is no substantial federal question. Shelby’s response is essentially, “Um, have you missed the last thirty three years?” (which, in Utah, is quite possibly a dumb question). In that period, the Supreme Court has decided that individuals have protection from discrimination on the basis of sexual orientation (Romer v Evans) and can do what they want with their bits in private (Lawrence v Texas), and our collective understanding of homosexuality has moved from “psychological disorder” to “that sweet couple next door with all the cats”. In Windsor, Roberts and Scalia both stated that the result would mean that there would be challenges to state denials of same-sex marriage. So, no.

Then Shelby looks at the due process right. The Due Process Clause, he says, provides protection for a number of rights, some listed in the Constitution, and others which are not, such as the right to marry. The Supreme Court has found that marriage is a fundamental right, closely associated with rights to liberty, privacy and association, and has struck down laws which improperly intrude upon it (most notably in Loving v Virginia).

Shelby proceeds to stomp on every stupid argument made by the State (and almost every wingnut ever).

The State argues the gays are free to marry – they can marry someone with opposite parts and procreate just like God intended. Shelby says that that this is a dumb argument, that “this purported liberty is an illusion”, as marriage is about much more than just procreation – it’s about choice and privacy and dignity and companionship. He also notes that the AG’s office failed to challenge any of the evidence given by the couples that the ban harmed them because they could not develop an intimate bond of marriage with a person of the opposite sex. Good job, fellers.

The State argues that the couples are seeking a new right called “same-sex marriage”, and the couples can’t show (as required) that this new right is “deeply rooted in this Nation’s history and tradition” because gay. Shelby again refers to Loving – the Supreme Court in Loving didn’t find a new right to interracial marriage, just that people of different races were entitled to access the existing right of marriage, which is:

deeply rooted in the nation’s history and implicit in the concept of ordered liberty because it protects an individual’s ability to make deeply personal choices about love and family free from government interference.

The State argues that the right to marry cannot mean the right to gay-marry because the words of the Constitution must have the meaning they had back when we all shat in pots, owned other people, and died of syphilis and smallpox. No, says Shelby – the Constitution allows us to make decisions based on new knowledge, such as our knowledge of what it means to be gay or lesbian and to want a committed, loving relationship with someone of the same sex.

“The court, and the State,” he says, “must adapt to this changed understanding.”

This, of course, gives Shelby another chance to give Fat Tony a poke:

Litchen 2

Moreover, says Shelby, the State can only pass a law that restricts this fundamental right provided the law is “narrowly tailored to serve a compelling state interest”, such as laws controlling the age at which someone may marry or preventing marriage where someone is not mentally competent or is in prison for life.

Kitchen 12

Shelby’s analysis on the equal protection right is equally forthright.

The Fourteenth Amendment requires that states do not deny to any person within their jurisdiction the equal protection of its laws. Where a law interferes with the exercise of a fundamental right (like marriage), it must be carefully scrutinized, although the level of scrutiny depends upon the class of people the law affects.

Shelby suggests that the Utah laws would fail the “heightened” scrutiny test which applies to state laws which discriminate on the basis of sex – that the law must be substantially related to an important governmental objective. However, he says that he doesn’t need to decide whether that is the case because the laws also fail the most basic level of scrutiny – that is, that they must bear a rational relation to some legitimate end.

Here, of course, the State rolls out the usual argument, backed up with the usual bogus research – extending the benefits of marriage to opposite sex couples leads to more babies being raised in nuclear families, and nuclear families are so much better than all those other crappy families. Shelby says that the attorneys for the State have missed the point …

Kitchen 3

… and that they cannot show any rational basis upon which banning same-sex marriage provides any incentive to opposite sex couples to marry and have children within wedlock.

Kitchen 5

Kitchen 6Kitchen  7

By contrast, the harm to the couples is clear and, as such, the laws violate the right of equal protection.

Shelby’s conclusion is worth quoting in its entirety:

Conclusion 1 Conclusion 2 ———-

Late last year, Rick Hasen at Election Law Blog wrote a very good article about why it’s likely that state bans on same-sex marriage will be before the Supreme Court sooner, rather than later.

But that same strategic calculation which might lead the Chief not to vote to grant cert. could lead one of the four Court liberals to vote to take the case. That is, they too may want to force Kennedy’s hand, if they are confident in his vote. If it only takes one of the four to join in a vote for cert., I think it is pretty likely to happen. The way it might not happen happen is if Alito, Scalia and Thomas all decide to vote strategically not to hear these cases. I’m guessing they won’t be able to resist. …

… I expect within a year or two this case or another will make it to the Court in a way that leads the Court to decide the same-sex marriage issue on the merits. There are just too many questions, and so much litigation, for the Court to avoid the merits for too long.

In their stay submissions, the couples in Kitchen provided a listing of 25 current state and federal lawsuits, covering fifteen states, challenging state laws banning same sex marriage.

Sevcik v. Sandoval, No. 12-17668 (9th Cir., appeal filed Oct. 18, 2013), No. 2:12-CV-00578 (D. Nev., filed Apr. 10, 2012); Jackson v. Abercrombie, Nos. 12-16995, 12-16998 (9th Cir., appeal docketed Sept. 10, 2013), No. 1:11-CV-00734 (D. Haw., filed Dec. 7, 2011); Freeman v. Parker, No. 4:13-CV-03755 (S.D. Tex., filed Dec. 26, 2013); Latta v. Otter, No. 1:13-CV-00482 (D. Idaho, filed Nov. 8, 2013); DeLeon v. Perry, No. 5:13-CV-00982 (W.D. Tex., filed Oct. 28, 2013); Tanco v. Haslam, No. 3-13-1159 (M.D. Tenn., filed Oct. 21, 2013); Geiger v. Kitzhaber, No. 6:13-CV-01834 (D. Or, filed Oct. 15, 2013); Palladino v. Corbett, No. 2:13-CV-05641 (E.D. Pa., filed Sept. 26, 2013); Bradacs v. Haley, No. 3:13-CV-02351 (D.S.C., filed Aug. 28, 2013); Harris v. McDonnell, No. 5:13-CV-00077 (W.D. Va., filed Aug. 1, 2013); Bourke v. Beshear, No. 3:13-CV-00750 (W.D. Ky., filed July 26, 2013); Obergefell v. Kasich, No. 1:13-CV-00501 (S.D. Ohio, filed July 19, 2013); Bostic v. McDonnell, No. 2:13-CV-00395 (E.D. Va., filed July 18, 2013); Jernigan v. Crane, No. 4:13-CV-00410 (E.D. Ark., filed July 18, 2013); Whitewood v. Wolf, No. 1:13-CV-01861 (M.D. Pa., filed June 9, 2013); Bishop v. United States, No. 4:04-CV-00848 (N.D. Okla., filed Nov. 3, 2004); Fisher-Borne v. Smith, No. 12-CV- 00589 (M.D.N.C., filed June 13, 2012); DeBoer v. Snyder, No. 12-CV-10285 (E.D. Mich., filed Jan. 23, 2012); Bassett v. Snyder, No. 2:12-CV-10038 (E.D. Mich., filed Jan. 5, 2012); Wright v. Arkansas, No. 60CV-13-2662 (Ark. Cir. Ct., filed July 1, 2013); Brinkman v. Long, No. 2013-CV-32572 (Colo. Dist. Ct., filed Oct. 30, 2013); Ky. Equality Fed’n v. Beshear, No. 13-CI-01074 (Ky. Cir. Ct., filed Sept. 10, 2013); Commonwealth v. Clary, No. 11-CR-3329 (Ky. Cir. Ct., motion for invocation of marital privilege filed June 6, 2013); Donaldson & Guggenheim v. Montana, No. BDV-2010-702 (Mont. Dist. Ct., filed July 22, 2010, amended complaint filed July 15, 2013); In re Marriage of J.B. and H.B., No. 11-0024 (Tex., argued Nov. 5, 2013); State v. Naylor, No. 11-0114 (Tex., argued Nov. 5, 2013).

That list is only going to get longer.The great thing about Shelby’s decision is that it strips the argument back to its basics – Marriage is, and should be, a fundamental right, and the Jesus-jumpers cannot show, no matter how hard they try, it is rational to believe that if we stop the gays getting married, and all wish really hard, the marriage fairy will sprinkle her magic pixie dust of pregnancy and responsible parenting all over us.

Even if the Utah AGs Office manages to find some competent attorneys in the next few weeks and months, they, and all of their friends, are still slapping the Maybelline on a particularly hairy old pig and then trying to roll it up a hill.

Even if the Supreme Court decides that states can restrict marriage to straight people, whether because Kennedy or Ginsburg or Breyer believe in gradual change, or because Scalia has Kennedy rubbed out and makes him sign his majority judgment Weekend At Bernie’s style, the list of states that deny their citizens the right to marry because of who they love is going to keep getting shorter and shorter, and that pig is going to get hairier and heavier and orneryer, and there ain’t that much lipstick in the world.

Even Tony Scalia knows it.

Now, if you’ll excuse me, I’m going to a Liberal Party fundraiser tomorrow and I have to bake that nice Mr Abbott a batch of my finest blueberry and exlax® muffins.

[Titian – Sacred and Profane Love.]

93 replies
  1. 1
    Aji says:

    Shelby’s obviously not a very good Republican, since he refuses to reduce “marriage” to a property transaction. Like the man already. And anyone who gives Scalia a poke deserves a friggin’ medal. I’ve had the distinct displeasure of interacting with that man many years ago, and however obnoxious he is on the bench, he’s worse in person.

    Oh, and the breasts won’t scare the horses in the slightest. It’s only uptight Republican two-legged types who freak out over them.

  2. 2
    Librarian says:

    And when Shelby’s decision is affirmed, we can ask Mr. Meacham if he’s going to go back on his hunger strike. I can’t wait.

  3. 3
    Mike in NC says:

    The decision of the Supreme Court to grant a stay of same-sex marriages in Utah shouldn’t really come as a great surprise, whatever the actual merits of the stay application.

    “It’s Utah, Jake!”

  4. 4

    I’m happy to see that the judge addressed one of the sillier “objections” I’ve seen — that, somehow, denying certain people the right to get married strengthens the institution of marriage because shut up, that’s why.  It was one of the things that brought me over to the “full marriage” side of the debate:  if the institution of marriage is so friggin’ important to society that it’s a social disaster that the marriage rate is going down, why is it in society’s best interest to deny it to people who want to participate?

    @Aji:

    Oh, and the breasts won’t scare the horses in the slightest. It’s only uptight Republican two-legged types who freak out over them.

    Well, and employers.  Those of us who read B-J at work tend to need to stay away from even painted breasteses in case a nosy boss or co-worker pops up over our shoulder to see what we’re giggling at. I just finished my mandatory harassment training at the Giant Evil Corporation, so I knows these things now.
    ;-)

  5. 5
    maximiliano furtive, formerly known as dr. bloor says:

    Nothing like a good court decision that includes hooters.

  6. 6
    Mudge says:

    @Aji: Republican or not, Shelby was appointed by Obama. I suspect he is not totally disconnected from reality.

  7. 7
    Aji says:

    @Mnemosyne (iPhone): Well, yeah, there’s that. I just didn’t want the insult to the four-leggeds to go unchallenged. Horses are smarter than that. :-D

    Speaking of which, New Rescue Pony had to have some new experiences yesterday. Including a nasty evil thing called a halter. Doesn’t seem to have left any permanent scarring.

  8. 8
    Aji says:

    @Mudge: I suspect there will also soon develop a low, insistent hum of “Impeach Shelby!” from the more teabaggerish types up there. Like, say, Hunger Strike Give Me Free Pizza! Dude.

    Nothing that will go anywhere; just their usual verbal masturbatory fantasies.

  9. 9
    Roger Moore says:

    I especially like the part where he boils their argument down to “we just simply don’t know” and proclaims it unpersuasive. It’s a very neat evisceration.

  10. 10
    Tim F. says:

    Cats? Maybe lesbians have cats. Gay dudes own dogs. Max and I have been to p-town, and I can tell you the only cat we saw was neurotic.

    In fact. The little bastard was a New York alleycat that some genius rescued and brought to the most dog-centric town in the country. He took some skin off my shins trying to get at Max (brave dog, he) for the crime of walking too close to his antique shop. Everyone within a block rushed over and offered to testify against the little menace and then fell to pieces over Max.

  11. 11
    scav says:

    So, that “unwavering commitment to the law” came back and bit them, hard. So, along with hubris, add another fine cultural artifact much used in Greek [adolescent snigger dubbed in] tragedy to the epic being played out.

    @Roger Moore: yep, he’s a fine way with them. Words. Logic and law seem to be holding up too.

  12. 12
    SiubhanDuinne says:

    My lawyers call that a CLM.

    IANAL and I don’t know what CLM means.

    ::googlegooglegoogle::

    I still don’t.

  13. 13
    Botsplainer says:

    I’m wondering whether the Utah freakout is related to the elephant in the room that no one (conservative, liberal, gay or straight) is willing to talk or think about – polygamy (always a big underlying issue there in Utah). Every argument used to justify same sex unions is also valid as to polygamy, but there is no aspect of American jurisprudence that is developed so as to address the property, debt, benefit, support or other issues related to a polygamous marriage.

    Of course, there are also the issues related to the lost boys (the Jeffs cult hidden victims) to use to try and quash that effort, but I’m not certain that their welfare trumps the inherent association rights that Shelby appears to invoke.

    I’m 25 years into domestic relations practice, and can tell you that it would take an army of committees to formulate a rational legal framework for polygamy.

    ETA- Should a sister wife have visitation rights, or would an employed sister wife have child support or maintenance obligations? How do you prorate property and debt interests for a younger sister wife who leaves a marital union? What about if a ffamily patriarch leaves a union and chucks it all – what are his child support obligations?

  14. 14
    scav says:

    @SiubhanDuinne: With SPT? I’m expecting too special for the mere gogglebot. May have pitched my hopes too high . . . . so . . . . ?

  15. 15
    Roger Moore says:

    @SiubhanDuinne:
    Try Acronym Finder instead. I’m pretty sure the one there is “career limiting move”.

  16. 16
    elmo says:

    The lack of preparedness and flexibility at the Utah AG is just astonishing to me. You make a representation to a Federal judge, you had better be prepared to make a record. Fast.

    “Judge, please give us a stay because things are happening now that will be tricky to overcome later.”
    “Well, counsel, I’ll certainly consider any facts you can put in front of me to back that up. When can you get that before me?”
    “Hrrp derp! Durr! Squirrel!”

    Wankers.

  17. 17
    The Red Pen says:

    who like drinking pina coladas in the rain

    I like pina coladas, and getting caught in the rain.

    Both at once? That’s just an affront to the Bible.

  18. 18
    Aji says:

    @SiubhanDuinne: My guess is nothing legal: “Career Limiting Move,” which IIRC is common business slang in the UK and Australia.

  19. 19
    Roger Moore says:

    @Botsplainer:

    Every argument used to justify same sex unions is also valid as to polygamy, but there is no aspect of American jurisprudence that is developed so as to address the property, debt, benefit, support or other issues related to a polygamous marriage.

    You’re contradicting yourself. One of the arguments used to justify same sex marriage is that it’s just like opposite sex marriage except that the couple are the same sex. You can literally cross out one of “husband” or “wife”, write in the other one, and you’re up and going. In contrast, as you point out, polygamy would require a much more thorough rewrite of the legal code covering marriage.

  20. 20
    Belafon says:

    @Botsplainer: And what if a woman marries two men? Is the biological father the only one responsible for the child?

  21. 21
    Botsplainer says:

    @Roger Moore:

    One of the arguments used to justify same sex marriage is that it’s just like opposite sex marriage except that the couple are the same sex.

    But if your right is about your ability to order your private, consensual adult relations without the interference of government, then why limit the number to just two? Might not some people be capable of successful polyamory?

  22. 22
    maya says:

    Utahnanians

    And here I thought they was Utahnarians.

  23. 23
    Botsplainer says:

    @Belafon:

    And what if a woman marries two men? Is the biological father the only one responsible for the child?

    Current jurisprudence would suggest not, if the members of the polyamorous union shared a household and the child was accustomed to the parenting efforts of the non-biologically related.

  24. 24
    Botsplainer says:

    @The Red Pen:

    I like pina coladas, and getting caught in the rain.

    I’ve always thought that somebody should do a short video on how that meeting scene would play out in real life. The screaming, the recrimination, the denial, the tears.

    It would be AWESOME.

  25. 25
    Aji says:

    @Belafon: That jurisprudence is being developed – hell, there was a FL case last year, and the UK, IIRC, passed a law awhile back expressly permitting more than two parents to be listed on birth certificates. Necessary first step in developing that line of law.

  26. 26
    Belafon says:

    @Botsplainer: Yes, but a lot of US law regarding marriage, that same sex couples are fighting for, involves financial and property rights. It currently exists in the two spouse form – when one dies, everything goes to the other, for example – but does not handle more than one spouse. And Roger Moore was pointing out, this makes polygamy different.

  27. 27
    Meyerman says:

    @SiubhanDuinne: I think it’s “career-limiting move.” At least that’s what it stood for when I was working at a big law firm.

  28. 28
    Botsplainer says:

    @Belafon:

    It currently exists in the two spouse form – when one dies, everything goes to the other, for example – but does not handle more than one spouse. And Roger Moore was pointing out, this makes polygamy different.

    The “its hard to do” argument doesn’t overcome the constitutional principles of association and privacy that Shelby’s opinion seems to be addressing.

    Perhaps the better approach is to eliminate the favored, near sacramental status of marriage in law altogether, and force everyone who wants to have property and liability rights that resemble modern marriage to do it by written contract.

  29. 29
    Botsplainer says:

    @Aji:

    The judge might order the names included, but unless the state was a participant in the litigation, it may not happen. I’ve seen well-meaning judges who want to be seen as progressive do a lot of goofy things with regard to adoption and gay couples, only to have everything erupt in disaster later on.

  30. 30
    Jebediah, RBG says:

    @Tim F.:

    Everyone within a block rushed over and offered to testify against the little menace and then fell to pieces over Max

    Having seen a few pictures of Max, that isn’t even a tiny bit surprising. He might not be the bravest dog around, but he is one sweetly good-looking son of a bitch.

  31. 31
    Belafon says:

    @Botsplainer: Agreed on the marriage thing.

    The only reason I’m opposed to polygamy is it’s history of being used to oppress women. Make it equally likely that a women will marry multiple men, and I’d be all for it.

    The only reason I’m against cloning humans is that some Christians would try to kill them.

  32. 32
    Aji says:

    @Botsplainer: No argument there, but this is a necessary first step to redefining parental and family rights and responsibilities in the modern era. Which I regard as a good thing ultimately, but one that will be filled with pain and stress for untold numbers of litigants in the meantime.

  33. 33
    stratplayer says:

    @Botsplainer: I’ve been saying for years that the massive burden of creating and successfully enforcing the insanely complex and hideously expensive legal regime required to rationally govern polygamous marriages is a compelling state interesting militating against state recognition thereof. No such compelling state interest exists with respect to binary same-sex marriage, so any comparison is the proverbial apples and oranges.

  34. 34
    Betty Cracker says:

    Awesome post, Ms. Sarah.

    @Aji: Glad to hear Rescue Horse is adjusting. How are the hens faring in the cold? We didn’t even get a freeze, and mine have a snug hen house. And yet they seem…resentful.

  35. 35
    scav says:

    Couple other interested to my Bear of Small Brain non-legal mind. These bits (I’m just starting) seem to deliver brick side-blows to a few other activities currently being trumpeted as solutions to laws RW states don’t want to bother with obeying. What’s the likelihood of this having larger application? Also, isn’t there a difference based on the region the court is in, so, how does this play out with that pocket of states? Am I again being weirdly & uncharacteristically over-optimistic?

    The court agrees with Utah that regulation of marriage has traditionally been the province of the states, and remains so today. But any regulation adopted by a state, whether related to marriage or any other interest, must comply with the Constitution of the United States. The issue the court must address in this case is therefore not who should define marriage, but the narrow question of whether Utah’s current definition of marriage is permissible under the Constitution.

    Few questions are as politically charged in the current climate. This observation is especially true where, as here, the state electorate has taken democratic action to participate in a popular referendum on this issue. It is only under exceptional circumstances that a court interferes with such action. But the legal issues presented in this lawsuit do not depend on whether Utah’s laws were the result of its legislature or a referendum, or whether the laws passed by the widest or smallest of margins. The question presented here depends instead on the Constitution itself, and on the interpretation of that document contained in binding precedent from the Supreme Court and the Tenth Circuit Court of Appeals.

  36. 36
    Aji says:

    @Betty Cracker: LOL – yes, resentful. Zero-degree temps and sub-zero wind chills. Are yours laying? Ours are still molting. Time for them to get on the stick and get back to earning their keep, y’ask me. Of course, I tell them that, and they just look at me. Resentfully.

  37. 37
    kc says:

    @Aji:

    I’ve had the distinct displeasure of interacting with that man many years ago, and however obnoxious he is on the bench, he’s worse in person

    Tell us more!

  38. 38
    JR says:

    Bear in mind the Utah AG’s office is a total fustercluck at the moment, owing to the resignation of AG John Swallow amidst a major scandal.

    I’m not at all surprised they didn’t have a plan in place for handling this case. This is an extremely politically important matter there, and they don’t have their politician-in-chief to guide the office.

  39. 39
    Anonymous At Work says:

    Not having the stay ready might have changed the course of the case. Now that 900 couples are married and the Supreme Court set to take this case up in a year or two, it’ll force Justice Kennedy to establish “how” the Supreme Court will divorce these people.

  40. 40
    Aji says:

    @kc: Oh, this was decades ago, in a law-school setting. Let me just say that he is and has always been sort of Patient Zero of the Angry White (cis/het Xtianist) Male Syndrome. References to “you people.” Pointing his finger (seriously rude in our culture). Putting words in your mouth that you didn’t say (or even think) to build a straw man the size of the Chrysler Building, just for the sheer adolescent joy of setting fire to it and watching it burn. Overtly trying to humiliate people for the bullying pleasure of it.

    And that was donkey’s years before he told a woman journalist, in public and immediately after receiving communion, in Italian, to “go and take it up the ass.”

  41. 41
    chopper says:

    @Tim F.:

    Gay dudes own dogs. Max and I

    are you trying to tell us something, tim?

  42. 42
    Betty Cracker says:

    @Aji: Pissed off chickens have a definite tone, don’t they? Mine have maintained admirable egg production, but the weather was fine here until yesterday. We’ll see if they’re on strike when we gather today’s haul.

  43. 43
    Fair Economist says:

    @Botsplainer:

    But if your right is about your ability to order your private, consensual adult relations without the interference of government, then why limit the number to just two? Might not some people be capable of successful polyamory?

    Private, consensual adult polyamory is indeed officially legal in many states and legal in practice in all. And polyamorists are free to design contracts to deal with inheritance, visitation, custody, and whatnot. But marriage is also about public rights and state support. There are at least two reasons why poly marriages are fundamentally different from same sex marriages.

    First, current law is all designed for two people. Same-sex marriage is just like opposite-sex marriage except for certain things that happen in private, and not even in all cases. There are zillions of issues that come up with poly marriages. For example, if hubby is incapacitated and two wives disagree on treatment, who makes the decision? Can you have a “corporate marriage” lasting for centuries with a constantly changing roster of members, and if so, what benefits from deceased spouses can you carry along? Can an entire criminal organization marry each other so nobody can be compelled to testify?

    Second, nobody’s been able to come up with any societal problem from same-sex marriages, and our limited experience with them has indicated there is, if anything, a benefit. However, we know, from extensive experience throughout history, that widespread poly marriage creates a huge problem in the form of “excess” men who can’t find a wife (and don’t want a husband). The “lost boys” of the quasiMormon cults is just the latest example of this. Suicide bombers are overwhelmingly unmarried men – is it just coincidence they are mostly from the only culture with widespread official polygamy? And China has had several periods of problems created by “barren branches”, excess men due to a combination of polygamy and a bias for male children.

  44. 44
    Roger Moore says:

    @Belafon:
    Equally important, there’s a serious question of whether a polygamous relationship involves multiple marriages between pairs of people or if it involves a single marriage between a group of people. For example, if you have a man and two women, what if anything is the legal relationship between the two women? Are they each married only to the man- in which case they have no right of survivorship to each other and their relationship is severed if the man dies- or are the three of them in a three-way relationship that survives the death of any one of the three? If you have multiple marriages between couples, how much say to existing spouses have before their spouse can enter into a new marriage? In the example above, can the two wives of a single man marry each other so they still have a relationship if their husband dies? These aren’t unsolvable problems, but they’re questions that would have to be answered to have a working legal system in which you extend marriage beyond an exclusive relationship between two individuals.

  45. 45
    chopper says:

    @Aji:

    of course, despite tony’s statements in both Lawrence and Windsor that they inevitably lead to legalizing same-sex marriage, he’ll still come up with a way to vote against it because ‘precedent only matters when you agree with it’.

  46. 46
    LanceThruster says:

    Message to Utahr. If you don’t want to be teh ghey, don’t be teh ghey.

    Leave everyone else the hell alone.

  47. 47
    SiubhanDuinne says:

    @scav: Yes, I did consider the source, but thought it best to check anyway (I hate getting those annoying HLMGTFY messages.)

  48. 48
    scav says:

    @SiubhanDuinne: Turns out I was just giddy and less grounded than you. sigh. I’ll just have to raid some more holiday chocolate for a substitute treat.

  49. 49
    SiubhanDuinne says:

    @Roger Moore: Ah, thanks! That does make sense. Just never heard it acronymed before.

  50. 50
    Aji says:

    @Betty Cracker: Yes, they do. Also side-eye. Let me know if yours decide to withdraw their labour, as the Brits say – and of so, what you do about it.

    @chopper: Of course he will. Sky blue, water wet, etc., etc. even unto the end of days. Tony’s “Originalism” has never been anything more than “Hey, look! A pseudointellectual rationalization so that I can vote my prejudices!” He, like all of his ilk, is, always has been, and always will be a towering hypocrite.

    ETA: Which may, come to think of it, be the point, since it’s the only way he can “tower” over anybody.

  51. 51
    Roger Moore says:

    @Botsplainer:

    The “its hard to do” argument doesn’t overcome the constitutional principles of association and privacy that Shelby’s opinion seems to be addressing.

    But they certainly provide at least a rational basis for distinguishing any form of polygamous marriage from what we already have. It’s not clear to me what legal standard a judge would use to determine whether laws against polygamy are constitutional, but they would pretty clearly meet the rational basis test, and they might very well meet heightened scrutiny.

  52. 52
    ericblair says:

    @Roger Moore:

    These aren’t unsolvable problems, but they’re questions that would have to be answered to have a working legal system in which you extend marriage beyond an exclusive relationship between two individuals.

    I’m also guessing any arrangement that would withstand legal scrutiny would be totally unacceptable to the religious polygamists.

  53. 53
    Avery Greynold says:

    @SiubhanDuinne: Run abbreviations through Urban Dictionary. They agree that CLM = Career Limiting Move, but I was hoping for something dirtier. UD will tell you when Google won’t.

  54. 54
    Ash Can says:

    A great post, of course, and how heartening it is to see the “limit marriage to breeders” assholes get called out and kicked to the curb. Now if only the USSC would take the issue on and reach the same conclusion.

  55. 55
    SiubhanDuinne says:

    @Aji: Thanks! I’ve heard the term but it wasn’t that common in my own career.

    Maybe it should have been…

  56. 56
    SiubhanDuinne says:

    @Meyerman:

    Thanks. That does seem to be the consensus, and makes utter sense in context.

  57. 57
    Another Holocene Human says:

    The AG’s office has spent the last two weeks desperately trying to stick the ferret back in the bag where the ferret don’t want to go.

    All right, I lol’ed.

  58. 58
    the Conster says:

    @Botsplainer:

    I’ve explained this with great success to anti-SSM people – multiple marriage (polygamy and polyandry, and it’s always a shock to wingnuts to explain that if polygamy is allowed, so must polyandry be) flies in the face of 500 years of property and inheritance laws which can be mapped perfectly to SSM by simply re-defining the word “spouse”. The only way for a multiple marriage to afford all parties to the “marriage” equality, is for all parties to the marriage marry each other, so each party has an equal interest in the property and children of the marriages, which as you can imagine, makes litigating any distribution of assets upon death of any of the parties, or responsibility to the children upon divorce, a legal nightmare. It simply can’t work.

  59. 59
    Betsy says:

    @Anonymous At Work: Wouldn’t it be great if that was how marriage discrimination was done in across the land? — all because of a derp moment in a state government office in Utah !??

  60. 60
    SiubhanDuinne says:

    @Avery Greynold:

    I do check UD occasionally, but didn’t this time. Because SPaT wrote “My lawyers call that a CLM,” I (erroneously, as it turned out) leapt to the conclusion that it was a legal term.

    I use UD for more, well, urbany words and phrases :-)

  61. 61
    burnspbesq says:

    @Belafon:

    Rational basis is a pretty low hurdle, but I’m not sure whether a court would say “allowing polygamy makes intestate succession and distribution of marital property on divorce really, really complicated” would qualify. I can imagine an appellate judge with a nasty sense of humor saying something like “well, the IRS figured out a logical way to do buy-in and buy-out payments when parties enter and leave a cost-sharing agreement, so how hard can this be?”

  62. 62
    Villago Delenda Est says:

    the United States Army Achievement Medal and the National Defense Service Medal

    They listed the lowest possible merit medal (one that I have multiple oak leaf clusters for) and a redundant with the uniform medal on his Wiki page?

    Seriously?

    I’m sure this impresses the heck out of the civilians out there, but veterans are sniggering at this.

  63. 63
    Joey Maloney says:

    @elmo: The lack of preparedness and flexibility at the Utah AG is just astonishing to me.

    Not so astonishing if you consider the recently-elected AG resigned two weeks before the decision, skipping out of office on the heels of an investigation that accused him of amazingly widespread and amazingly inept ethics violations, many of them criminal. The office is in pretty serious disarray.

  64. 64
    srv says:

    @the Conster: Polygamy needs to be challenged soon and will be a boon for divorce lawyers and the courts. Bring it on.

  65. 65
    Someguy says:

    @Botsplainer:

    I’m wondering whether the Utah freakout is related to the elephant in the room that no one (conservative, liberal, gay or straight) is willing to talk or think about – polygamy (always a big underlying issue there in Utah).

    Part of it is that. The legal right, which has had significant internal splits on the SSM question (see e.g. Ted Olson and the libertarian types), is flipping out over the decision, which they believe just inadvertently (or perhaps not inadvertently) legalized polygamy, because there was no way to strike the language restricting marriage to one man and one woman, without striking the limitation on two people. Regardless, I don’t think there’s any legal basis for limiting marriage to two people at this point – it’s absolutely as arbitrary as limiting it to one man and one woman, and the discrimination against the third, fourth, fifth or nth partner will be exactly the same sort of discrimination the Supreme Court stomped on last year, just arbitrary discrimination preventing people from marrying whom they want to marry… but the polygamy issue wasn’t directly before the federal court in Utah so who knows what happens next.

  66. 66
    Villago Delenda Est says:

    @srv:

    Well, you can bet the Utah AG won’t be zealously defending that particular marriage ban…

  67. 67
    Villago Delenda Est says:

    @Someguy:

    Just makes contract law a whole lot more complicated, basically. Fun times ahead for the courts!

  68. 68
    Someguy says:

    @ericblair: I’m also guessing any arrangement that would withstand legal scrutiny would be totally unacceptable to the religious polygamists.

    And once you allow polygamy, but don’t make reasonable accomodation for the mormons (and the Muslims, and a few Orthodox Jews), you’re in violation of RFRA, and had better re-write that statute.

  69. 69
    kc says:

    @Botsplainer:

    How libertarian of you!

  70. 70
    kc says:

    @Aji:

    I believe it. I’ve seen him on the bench, twice (just spectating), and he really is full of himself, and disrespectful to everyone else.

  71. 71
    Botsplainer says:

    @Someguy:

    Regardless, I don’t think there’s any legal basis for limiting marriage to two people at this point – it’s absolutely as arbitrary as limiting it to one man and one woman, and the discrimination against the third, fourth, fifth or nth partner will be exactly the same sort of discrimination the Supreme Court stomped on last year, just arbitrary discrimination preventing people from marrying whom they want to marry…

    The logic is sound.

    It is the price that American society pays for the extent to which it protected and enshrined Christian forms of marriage at law. Tax rules, benefit regulations, insurance law, probate law, evidentiary principles, collection practice, bankruptcy statutes, real estate law and tort law are all significantly affected by one’s marital status, Unbundle some of that from marriage, and it becomes less important.

  72. 72
    Roger Moore says:

    @Someguy:
    I think you’re missing his point. The religious fundamentalists really want to go back to marriage as a property transaction where the husband is taking control of a woman from her previous owner, and polygamy as the right of a man to own many women at the same time. That isn’t going to square with modern concepts of marriage that treat spouses as equal partners with agency and identical legal rights, and there’s nothing that can be done to make those two concepts of marriage align.

  73. 73
    Mnemosyne says:

    @Botsplainer:

    But, as other people have said, what about property law and child custody laws? If you have a polygamous trio of two women and one man and one person wants out, how do you dissolve the marriage? If one person leaves, do the other two stay married, or does the entire thing dissolve and the people who want to stay married have to get re-married? If the whole thing dissolves, how is the property divided up.

    What if one of the wives was the primary childcare provider, but the children are not biologically hers — does she have any custody rights if the marriage dissolves, or is she SOL because she’s not biologically related? Who are the legal parents of any children born within a three-parent marriage — is it strictly biological, or are all three people the parents, and all three of them have to be given consideration when custody is determined?

  74. 74
    the Conster says:

    @Mnemosyne:

    There are so many possible nightmare scenarios – to say nothing about the problems for insurance companies and investment funds to determine beneficiary payouts upon death of any of the parties to the marriage, or who is covered by insurance policies. Only lawyers would end up with anything at the end of the day.

  75. 75
    Mnemosyne says:

    @the Conster:

    I’ve seen lawyers say, Oh, the law handles multi-person partnerships all the time, it’s no big deal, but as someone hinted at above, most of those partnerships are corporations and basically the partnership becomes its own legal entity. As someone said above, could a marriage then become a rotating “corporation” where people are added or leave but never actually dissolves?

    Also, those multi-person partnerships do not currently deal with family law at all, like child custody. You can’t really divide a kid up the way you would a piece of property.

  76. 76
    rea says:

    @Joey Maloney: I don’t care how much disarray the office is in–my computer and I could cut and paste a stay motion together in a couple of hours–why could not the Utah AG’s office do the same? It’s not complicated. Even if the possibility of losing never occurred to them before the judge issued his decision . . .

  77. 77
    the Conster says:

    @Mnemosyne:

    Corporations can be dissolved with the majority consent of the shareholders, but the liabilities remain. I really can’t see a multiple marriage working the same way, and what if half the parties want out, and the other half doesn’t? It’s just a completely unworkable mess, because people aren’t like corporations.

  78. 78
    Fred says:

    Scalia don’t like it
    Rockin’ the casba
    Rockin’ the casba

  79. 79
    Aji says:

    @kc: Yeah, classic bully. And like every bully I’ve ever known, overcompensating for some really fundamental, deep-seated personal insecurities, IMO.

  80. 80
    sm*t cl*de says:

    I read the arguments provided by the Utah lawyers — like “Gays are free to marry, just not each other, so a ban on SSM does not deprive them of any liberty” — and imagined them used against inter-racial marriages.

  81. 81
    Gex says:

    @sm*t cl*de: As though straight people would accept the idea that the government should say to them, you can marry anyone. Except the person you want to marry. How’s it feel to be free now?

  82. 82
    Gene108 says:

    @Botsplainer:

    How do Muslims handle this, since polygamy is legal in many Muslim countries and for Muslims in India?

  83. 83
    Roger Moore says:

    @the Conster:

    It’s just a completely unworkable mess, because people aren’t like corporations.

    But corporations are people, my friend.

  84. 84
    Mnemosyne says:

    @Aji:

    G has a theory that bullies are self-appointed enforcers of the social order, which is why they bully people who are outsiders. A lot of times, they’ll even claim they’re doing it for the victim’s “own good,” to toughen him/her up or make him/her conform to what everyone is supposed to do.

    If you look at Scalia’s written opinions, I think you can see where the connection is.

  85. 85
    Mnemosyne says:

    @Gene108:

    How do Muslims handle this, since polygamy is legal in many Muslim countries and for Muslims in India?

    Patriarchy. The husband has full control over the family and gets to make all of the decisions for everyone. A woman can get a divorce under Muslim law, but it’s very, very difficult.

  86. 86
    Rupert says:

    @SiubhanDuinne: The closest match for CLM I could find was Plumber’s Itch

  87. 87
    Origuy says:

    @the Conster:

    polygamy and polyandry, and it’s always a shock to wingnuts to explain that if polygamy is allowed, so must polyandry be

    Polygamy covers both cases. Specifically more than one female is called polygyny.

  88. 88
    Mnemosyne says:

    @Gene108:

    Also, too, because of patriarchy, things like “who makes the hospital decision?” don’t come up, because it’s the nearest male relative who makes that decision, not the wife. So most of the problems of polygamy are “solved” with patriarchy, but it kinda makes things worse for people in non–polygamous marriages to turn marriage in that direction.

    AFAIK, there is no modern country that has an egalitarian model of polygamy that involves three or more co-equal partners.

  89. 89
    Suzan says:

    My gripe with polygamy is that as practiced in Utah it is not economically viable. A guy with 5 traditional stay-at-home wives cannot support his 30 kids. They are all on welfare. Well, not all, but 75% or so of them are. Yes, the Sister Wives all worked, until they got there show, but that is unusual.

  90. 90
    Shortstop says:

    @the Conster: Polyandry is actually a subset of polygamy, not its opposite. One man + multiple women is polygyny. Polygamy is the umbrella term for plural marriage, whether polygynous or polyandrous.

  91. 91
    Shortstop says:

    @sm*t cl*de: Or how about this: telling a lesbian or gay man that s/he has the right to marry someone of the opposite sex is like telling people they have freedom of religion as long as they attend my church. It’s far from a perfect analogy, but it seems to resonate with the anti-equality folks who are religious (and aren’t they all, despite protests to the contrary) more than does the suggestion that, post-equality, they’ll also be free to marry someone of the same sex. ;)

  92. 92
    BroD says:

    Can I just note that it’s unfortunate to have another “Shelby” reference floating around. Would it be too much to ask the judge in this case to change his name to something with no other legal resonance –like maybe “Dred Scott” or something.

  93. 93
    DavidTC says:

    Or how about this: telling a lesbian or gay man that s/he has the right to marry someone of the opposite sex is like telling people they have freedom of religion as long as they attend my church.

    It’s more like telling someone that they can attend a certain school if they are one sex, but must attend a different school if they’re the other sex.

    Actually, it *is* telling people that. Literally. That is literally what it is doing. That they get one set of options if they are one sex, but another set if they are a different sex.

    I don’t know why we had to run around figuring out things things like ‘discrimination based on sexual orientation’ and ‘right to marriage’. Barring same-sex marriage is, as a matter of completely obvious fact, *sexual* discrimination.

    The tripping point is not that ‘gay women can marry men like straight women can’. That is, indeed, a valid point, and so, indeed, barring gay marriage is not technically discrimination based on sexual orientation. The tripping point is that ‘women cannot marry women like *men* do’.

    We have barred women from doing something (marry women) that men are allowed to do.

    That requires a ‘rational government interest’. It matters not how it affects ‘gay people’, or even if such creatures exist. The government cannot discriminate on the basis of sex, period, without a rational reason to do so.

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