On the EDge: Same-sex marriage isn’t dead, just on hold

OPINION – The rejoicing among those who celebrated yesterday’s stay of a federal court ruling on same-sex marriage will be short-lived.

The ruling by United States Supreme Court Justice Sonia Sotomayor isn’t a condemnation of same-sex marriage by any means.

It also doesn’t mean that the Supreme Court believes that a Dec. 20 ruling by U.S. District Court Judge Robert Shelby that the state’s ban on same-sex marriage violates gay and lesbian couples’ constitutional rights was wrong.

What it means is that the issue, which has been something that not only Utah officials have been wrestling with, is of a scope that a fuller decision by the U.S. Court of Appeals for the 10th Circuit, is required. That process begins on Jan. 27 and is to be completed by Feb. 25.

So, despite all the comments to the contrary, this is not the final word on same-sex marriage and those who have been hailing the decision have no reason to crow at this point just because they have, for the time being, been halted.

The approximately 900 same-sex marriages that have taken place in Utah since Shelby’s ruling, will stand, with those couples receiving full partnership rights and benefits.

There is nothing remarkable about Sotomayor’s decision, other than the timeframe she laid down for the appeal process, which, when it comes to constitutional law, usually moves at glacier-like speed.

The interesting point here is that the decision was rendered with no explanation. The likelihood that this matter will go before the full U.S. Supreme Court any time soon is unlikely. A case would have to be accepted this month to be adjudicated by the end of the court’s term in June, so we will have to live with whatever decision is handed down by the 10th Circuit Court of Appeals for quite some time.

The legal process is not often friendly nor always totally understandable. There are nuances upon nuances that can be terribly confusing to even the keenest observers, so much so that I would always instruct my reporters, back in the days when I was an editor, to never be surprised by a decision rendered by the courts.

My case in point, of course, was the O.J. Simpson murder trial where all the evidence pointed at a guilty verdict, but Simpson walked because the jury wasn’t convinced beyond a reasonable doubt that he killed his wife and her friend. That Simpson lost a subsequent civil case, where the level of proof is at a lower standard, was a no-brainer.

It’s our justice system and, despite all of the complaints that crop up on either side of a decision, it usually works pretty well.

So, it is understandable that when an issue as grave as same-sex marriage hits the docket, justices proceed with prudence.

That doesn’t mean I agree with Sotomayor’s decision, it just means that so many lives will be impacted by the final ruling here, the courts must ensure that they have an unshakeable foundation anchoring their final decisions.

There have also been some major mistakes made in this debate since Shelby handed down his ruling, primary amongst them was the assertion that because the people of Utah voted to ban same-sex marriage, it should be binding and that Shelby had no authority to overrule on such a matter.

The thing is, as any constitutionalist worth his salt will tell you, Article VI, Clause 2 of the United States Constitution, otherwise known as the Supremacy Clause, is very clear in establishing that federal law and judgments supersede state law: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” It’s this thing we refer to as a “system of checks and balances” to ensure fairness and a lack of exclusion or bigotry in the rules we live by.

The federal government can choose whether to flex its muscle or ignore violations of a federal statute at will, however, which is why Coloradoans can smoke marijuana without fear of arrest after voters there overwhelmingly approved recreational use of the herb. In this instance, I think the feds are studying the Colorado model to determine if it is possible to run a well-regulated marijuana trade and make it profitable in tax revenue. My guess is that if Colorado’s seed-to-smoke documentation and regulation proves successful – the state’s previous regulation of medicinal marijuana was lauded as the best in the Union – we will soon see the federal government lift its ridiculous prohibition of marijuana, if only as an economic move to reduce the deficit. It won’t be any too soon because Lord knows, we need some harmless diversion from the insanity of these times.

The bottom line is that same-sex marriage should not be judged on religious grounds or doctrine. It should be, where the law is concerned, based on human rights and civil liberties granted by the U.S. Constitution, which include freedom of speech, the right to privacy, the right to be free from unreasonable searches of your home, the right to a fair trial, the right to marry, and the right to vote.

It took some time for all of those rights to be granted, of course, because the law is a transient thing, changing with the times, needs, and advancement of our culture. If it wasn’t, we’d still have slavery, women would not be allowed to vote, and Jim Crow would be alive and well.

But, those things have all, thankfully, changed, just as I expect the ban on same-sex marriage in Utah to change.

All it takes is the realization that we cannot restrict the rights of others just because of their race, creed, or who they happen to fall in love with.

No bad days, for anybody.

 

Ed Kociela is an opinion columnist. The opinions stated in this article are his and not representative of St. George News.

 

Related posts:

Email: edkociela.mx@gmail.com

Twitter: @STGnews@EdKociela

Copyright St. George News, SaintGeorgeUtah.com LLC, 2014, all rights reserved.

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34 Comments

  • Patti January 7, 2014 at 12:18 pm

    Like

  • Daniel January 7, 2014 at 12:54 pm

    It feels like this article ended mid-thought. Is there more to it or did Ed really end it there?

  • Brian January 7, 2014 at 2:34 pm

    The biggest mistake was that judge shelby had any say in the matter. This is a states-rights issue, and certainly not a civil rights issue (any attempts to equate this to the civil rights movement giving blacks their freedom and right to vote is an insult to those who gave their lives to that cause).

    The original Utah State Constitution clearly states in Article 1 Section 29 that “Marriage consists only
    of the legal union between a man and a woman.” The federal government required that to be in there so we could be come a state (to avoid polygamy). It has been there since day 1.

    So to say that suddenly gay marriage is legal because Amendment 3 was hastily and erroneously overturned late on a Friday afternoon as everyone is leaving for a 2 week vacation (a dishonest act in its own right) is a LIE. Gay marriage has been illegal in Utah since the first day we became a state, and Amendment 3 was just the people of Utah reaffirming that. Overturning Amendment 3 changed nothing in the legal status of gay marriage in Utah. To pretend that it did is a lie and fraud being perpetrated against the people of Utah. As such all gay marriages entered into since then are null and void (and have been since the moment they were pronounced).

    • Ron January 7, 2014 at 10:17 pm

      Just as slavery was a states’ rights issue, uh-huh!

    • mark boggs January 7, 2014 at 10:22 pm

      Could you expound on the lie and fraud being perpetrated against you or the people of Utah by allowing gays to marry?
      .
      It would seem a people who claim to love their freedom and their liberty would see the contradiction in restricting a certain group of people from enjoying a liberty or freedom that other folks enjoy simply because of their genders.

      • ladybugavenger January 8, 2014 at 8:55 am

        Gay couples want a right to get married. For every right there is a wrong. One of us has to be wrong. Now, you want to talk about free will. Sure, everybody has a free will. Gay couples want to exercise their free will to get married. But don’t get that confused with a right.

        You wouldn’t be here if your biological parents are the same sex- it would be impossible, right? all of us that are born are a contradiction to gay relationships, marriage or not, for we all wouldn’t be born.

        • Zeke January 8, 2014 at 9:26 am

          Individual “Rights” Constitutional “Rights”. These are much different that the “for every right there has to be a wrong” analogy. Thanks for the good laugh though! The rest of the comment was good for a chuckle too.

        • Craig January 8, 2014 at 9:42 am

          Clear out your cobwebs. A civil right does not mean there will be a “civil wrong.”
          But, if it makes you feel good to believe ” For every right there is a wrong. One of us has to be wrong. “…then YOU ARE WRONG

          • ladybugavenger January 8, 2014 at 8:46 pm

            Now we are having a conversation. One that ends with you proving my point. 🙂

  • Ed Kociela January 7, 2014 at 3:12 pm

    yes…part of it is missing…techs working the problem now…

  • skippy January 7, 2014 at 3:52 pm

    Perhaps Ed fell asleep. And speaking of asleep, if, as the headstone in the pic above suggests, the SSM issue is just sleeping, then we still deserve to know if it’s sleeping with another issue of the same sexiness (which would be inappropriate while the appeal runs its course), or has it decided to sleep alone until the storm passes, or, better still, has it reoriented itself to the pleasures and divine logic of oppositional attraction?!
    I look forward to the day when the laws allow for both same-sex and polygamous marriages, or make it same-sex polygamous marriage. Then the Sister Wives can become Sister-Wife-Wives, dump that hippy and have some real fun!!

  • D Hodja January 7, 2014 at 5:41 pm

    Meanwhile Utah wastes money that could have been spent on something productive. And why? Because the LDS church is scared about how this will impact their temple marriages and sacred plan of salvation that just 40 years ago didn’t include biracial married people or blacks. Got to do some thinking Utah! Cause god and his only true church keep ending up on the wrong side of history. PS don’t reply this is not a Mormon issue. Why? 1. The LDS CHURCH lead efforts to halt gay marriage more than once in both Cali and Hawaii. They have spoken out on it repeatedly as they did blacks in the 60 and 70’s. And north of 80% of our leaders are all Mormons. The real question should be why does the Mormon populace ignore old men marrying 14 year old indoctrinated teen girls in Southern Ut, but we all know the answer…Joseph Smith married them as well.

  • Steve January 8, 2014 at 8:03 am

    Ed Kociela is an opinion columnist. The opinions stated in this article are his and not representative of most St. George area residents. In fact, many of his opinions oppose the more reasonable thinking of the good people of our area. He only has such a loud voice, because the editors of our local news outlets are outsiders. Don’t ever think that, when our local news outlets think it, the people agree.

    • skippy January 8, 2014 at 4:34 pm

      Not defending Mr. K. Frankly, I don’t know him, though he’s one of the more lucid and skilled writers on the staff, whether I agree with him or not. But I was wondering if, since you have special knowledge about which folks constitute “the good people of our area,” you could provide a list. I know it’ll be long because it contains “most..area residents,” but I’m just jonesin’ to see if I made the cut, especially since I’ve lived in “our area” for many years. And perhaps you could enlighten us fine folk, too, on what defines our “reasonable thinking” as opposed to the shrill “outsiders.” Perhaps there’s a third option to the typical us/them arrangement: folks who truly and consistently think for themselves and resist any herd impulse. If so, I want to sign on to that list. I promise I’ll do my best to reject the tired and simplistic but oh-so-energizing urge to generalize in such gross fashion.

  • Jon R. Cocktoasten January 8, 2014 at 3:03 pm

    This is the bottom line… We don’t try to make you straight, so stop trying to make us gay… We accept you and you should accept us! The people of Utah voted against same sex marriage. THE PEOPLE HAVE SPOKEN!!! I don’t see how a judge can overrule the will of the people of the state. It was put to vote and the majority won. Why do we always have to coddle the minority? Do what you do and stop trying to have what everyone else has. If you don’t work hard and make a lot of money, then you don’t get a huge house on the hill… Should we award every person who wants the huge house on the hill, a huge house on the hill just because they want it??? NO!!! If you don’t like UT then move! The highways travel both in and OUT of the state!!!

    • skippy January 8, 2014 at 4:46 pm

      I think I may share some of your frustration, though in a different fashion. I’m a straight male, but I swear that someone (straight, gay, animal lover — who knows?) is pulling some sort of voodoo-like reparative therapy stuff on me to make me a lesbian so that once this enormous tide shifts and we all become gay I will be left with the same ol’ past predilections and not enjoy the fun and new experience that others will. Not fair! Why me?!

    • mark boggs January 8, 2014 at 7:18 pm

      Let me re-word this and see how it sounds to you:
      .

      This is the bottom line… We don’t try to make you Catholic, so stop trying to make us Mormon… We accept you and you should accept us! The people of Massachusetts voted against the LDS folks from being a legitimate religion. THE PEOPLE HAVE SPOKEN!!! I don’t see how a judge can overrule the will of the people of the state. It was put to vote and the majority won. Why do we always have to coddle the minority? Do what you do and stop trying to have what everyone else has. If you don’t work hard and make a lot of money, then you don’t get a huge house on the hill… Should we award every person who wants the huge house on the hill, a huge house on the hill just because they want it??? NO!!! If you don’t like MA then move! The highways travel both in and OUT of the state!!!
      .
      Do you see how that whole “will of the majority” can really be a downer depending on whose ox is being gored? Do you want your rights to be put to a vote?

      • Adam Gale January 8, 2014 at 11:44 pm

        Whereas the people of Massachusetts have spoken, but have no authority in Utah, nor do the government EVER have the authority over Religion, then your entire argument is predicated on a false premise. As a side note, the POPE accepts the Mormon religion as a Church and religion. The Catholic Church and Mormon Church actually stand together on the same sex marriage issue, so I guess you’re really rallying against the Church you proclaim to be a part of.

        The Catholics were so happy with Mormons, they let them build a Temple in their backyard. 🙂 Facts over FICTION.

        • mark boggs January 9, 2014 at 6:52 am

          My point was, if they voted not to accept them as a religion from a state’s standpoint, Mr. Cocktoasten would argue that would be the law – state’s rights and all. Meaning that, in Massachusetts, there would be, for instance, no tax exemption for the church.
          .
          And technically, religion WAS left up to the states, which is why you had plenty of states that actually had religious tests. However, for the same reason same-sex marriage will probably prevail (14th amendment), states cannot discriminate against any particular religion. Not even if a majority voted on it.
          .
          And you did a marvelous job of missing my point about majorities voting on the freedoms of the minority and how that’s not such a good thing.

        • mark boggs January 9, 2014 at 7:28 am

          And, by the way, it’s called a “hypothetical”. Replace it with whatever two religions you want – baptists, buddhists, taoists, it doesn’t matter. A majority of them cannot vote out of existence the liberties of the minority.

  • Jon R. Cocktoasten January 8, 2014 at 3:05 pm

    Sometimes, I don’t make a lot of sense… But I still like what I say!!!

    • Mike January 8, 2014 at 4:24 pm

      I liked what you said also. It’s just too bad gays don’t care what is wanted in Utah. Their only agenda is to spread the “gay society” down our throats. Liberals and gays are trying to ruin this state just like they did California and other states.

  • Adam Gale January 8, 2014 at 11:39 pm

    To me, the issue of gay marriage, boils down to child abuse, and it is deliberate child abuse for any gay couple wanting a child. It is the deliberate denial of a child his RIGHT to a mother and a father. Yes, there are some couple that can’t have children, but that is not a deliberate act to deny a child the right to a mother and a father. It is child abuse. Numerous studies show that a child is best raised in a family where there is both a father, and a mother. God says it, Nature says it, the Universe has spoken, and so did the People of Utah when they voted to define marriage as only between one man, and one woman.

    That issue aside, you cannot legislate immorality. Marriage is not a constitutional right, no matter what previous judges before have stated. The founding fathers deliberately knew exactly what power they wanted the Federal government to have, and spelled it out, all black and white what power the Feds had, they then wrote the 10th amendment that granted anything not given to the Feds to the states to regulate. Marriage is a state issue. If you don’t like the state you’re in that doesn’t have gay marriage, then move to a state that accommodates your lifestyle CHOICE.

    I, however, don’t think the Supreme Court will even address the marriage issue this year, or even next. I believe they will rule that Shelby acted outside his authority, and overturn his ruling solely on the basis that Shelby didn’t have the authorization to strike down a State Amendment, regardless of it’s Constitutionality. One judge does not have the authority to do so, it’s why we have a judicial system. A panel of judges has the authority to strike down the law, but only when it comes to them via the proper fashion.

    I’m sure all the progressive haters of religion would be screaming bloody murder if a single judge with the stroke of his pen also made the act of homosexuality illegal and punishable with prison time.

    • Mike January 9, 2014 at 6:33 am

      So, am I to infer by your last paragraph that this is your wish, that all gays be rounded up and thrown in prison? Thank you for defining bigotry. Next will be the blacks and people of darker skin. You tout that it’s a CHOICE but in the age old reversal, when did choose? At some point you must have made that decision; somewhere in your past you had that attraction and you elected to move the other direction with it. I’m dying to know when that was. If instead, you state that you never chose, then why are you so certain gays did? Support your argument with facts please, not conjecture.
      Sounds like if anyone should move it should be you. The Middle East and Russia both would welcome you and your bigoted ways with open arms.

  • Simone January 10, 2014 at 3:56 am

    Dear Conservatives

    You have lost the gay marriage issue. The gay marriage issue was decided on early last year by the Supreme court o the United States (SCOTUS) SCOTUS heard 2 cases that defined the issue.
    1.) The court gutted the Defense of Marriage Act which defined marriage in the U.S as a union between one man and one woman in section 3
    2.) The court ruled that the proponents of proposition 8 (California’s own voter approved constitutional ban on gay marriage) did not have a legal standing to challenge t a 9th circuit court ruling lifting the ban on gay marriage in the Supreme Court. According to the ruling the proponents “must have suffered an injury in fact, thus giving [them] a sufficiently concrete interest in the outcome of the issue in dispute.” The state of Utah has not suffered a ‘injury in fact” by allowing Gay people to marry.

    With hat said, why are you republicans spending the states funds to fight this? Why don’t you spend the money fighting something you can actually affect. can’t think of any? I’ll list a few below off the top of my head below:
    Education: Your number 48 in the nation in per pupil spending.
    Homelessness: Yes the homeless are people too. They even have needs like food and water.
    unemployment: Use that money to create jobs.
    Public Services: That’s right, you can use that money to improve public services like hiring more police officers, firefighters and EMT’s to keep people safe! I know that this is kind of hard to believe but more police officers on the streets actually LOWERS the crime rate because they catch criminals like John Swallow. Sometimes they even prevent crime simply by being there.
    What gets me is that the state knows that putting the money into their little tiff with equal rights does nothing to benefit anyone. they are essentially throwing the money away. I hope that the majority of voters in the state of Utah realize how their elected officials are actually hurting them before any more damage has been done.

    • Mike January 10, 2014 at 7:24 am

      You would really Love San Francisco Simone. Why waste so much time complaining about this great state and move somewhere you would be happy? This is a conservative state. I think there was over 90 percent that voted for Romney. Everyone can choose where they want to live but you can’t change everyone’s views and beliefs to that of yours no matter how right you THINK you are. If that were true, many of us here would still be living in California.

      • Mike January 10, 2014 at 7:28 am

        Please tell me 1 right that I have that a gay does not.

        • Simone January 11, 2014 at 3:00 am

          I”ll do two. 1,) you have right to marry a person of your choice and 2.) You have the right to enjoy hundreds of legal benefits afforded to you and your spouse simply because you are legally married.

          • Mike January 11, 2014 at 9:35 am

            We both have the same choices to marry someone. You want to change the the law because you want to marry someone of the same sex. I can’t marry someone of the same sex either. We have equal rights.

      • Simone January 11, 2014 at 2:13 am

        When did I say that I was trying to change anyone’s views? I was merely pointing out a few areas where that money might be better spent.

    • Betty January 10, 2014 at 8:52 am

      Simone, I am not a “conservative” and I am not a republican. I am an American citizen who lives in Utah – by choice! And I am not part of any organized religion. However, I am a registered voter who did vote to define marriage between a man and a woman. Even you are here because of a man and a woman. I love the fact that I live in a country that allows me to vote for the candidate and laws that I chose. What I don’t love is when the majority of the people voted for something, it is disregarded by those who oppose. Like a bully on a playground, if they cannot have their way, they will push people around and call names to get their way. Since you believe you have all the answers, why don’t you run for public office? Start at the city or county level and work your way up.

      • Simone January 11, 2014 at 2:47 am

        Betty. The majority can be wrong. Try to put yourself in the shoes of a gay person. You can do that by imaging this situation reversed. Here’s the situation you would face. You have been with your heterosexual partner for X amount of years and you both live in Utah. You want to get marked but Only 17 states allow heterosexual marriage (aka marriage between one man and one woman) even the bible says that heterosexuality is an abomination. In 2004 a majority of Utah voters passed a constitutional amendment that defined marriage as between two people of the same gender. In 2013 the Supreme Court overturned overturned a federal ban on recognition of heterosexual marriage and in December of that year a federal judge ruled Utah’s voter approved ban unconstitutional citing the supreme courts ruling from earlier that same year. Unable to wait any longer you and your opposit sex partner rush to the county clerk and get married. An appeal is in the works however by the state whose new Attorney General argues that your now legal marriage hurts the state. The appeal works and a stay issued. People comment that the majority rules and names like “bully” are frequently used to describe you and people like you. Keep in mind that all you want is to be able to enjoy all of the same benefits she entitlements that your homosexual counterparts are already enjoying. If thi situation were true, don’t you think you might feel a little upset that you are not being treated the same as the majority? Would you think it was unfair? Wouldn’t you feel unequal in a nation where “all men are created equal”? Would you feel the majority is wrong? Think about it.

  • Star January 17, 2014 at 11:52 pm

    All I can say is that is Utah for us! Not surprising. St. George where I was born and raised has always had narrow-minded thinking shoved down everyone’s throat. To where most upstanding people are followers, sheep… Social Security. The “City Fathers” rule over everything! I remember 3 cop cars stopping underage smokers and Jay walkers… or just groups of kids doing nothing but being together interrogated for “doing something wrong”. My only wish and hope for Utah is that more people move into the state. to create a melting pot of cultures and religions, non religions and different belief systems in general…. especially St. George…. bring down the dogma, finish exposing the outdated rediculous thinking for what it really is, and bring forth a positive change. And place different leaders, state officials, from all sorts of walks of life…. and also expose everything that is swept under the rug as far as Utah’s sorted background and all that has been corruptly covered up….. then all those self righteous people who say “well if you don’t like this then go to another place” will see that we are all a part of this place called AMERICA…. same as California, same as Maine, Same as Hawaii and same as Alaska…. And if they want to resign themselves as Americans maybe they should go somewhere else where they can have their “perfect world”. I’m really not surprised with some of the oppressive arrogant opinions that fellow Utahn’s have to why this should not go through. Because it is their belief, so it must be everyone else’s, right? No? Then you must be wrong! It’s really not surprising at all.

  • Dana January 18, 2014 at 8:57 am

    Utah is the laughing stock of the world.
    First, they forget to request a stay.
    Then Gov. Herbie decides to have a hissy fit and won’t recognize same sex marriage. I guess that’s what the peep stones told him to do.
    Then, Eric Holder comes along and basically tells Herbie TFB, the Feds DO and WILL recognize SSM.
    The state tax commission decides it would be “problematic” to allow joint filing for SSM on tax returns then reverses their own decision and decide it’s not so problematic after all.
    Then, Herbie and his little hand (picked) puppet decide they are going to use $2M taxpayers $$$$ to fight SSM.
    BUT, they are either too stupid or too incompetent, so they pick another hand puppet to lead the charge. Which leads me to ask, if the hand picked sock puppet cannot do his job and they need to bring in outside help, WHY do we have the sock puppet in that position? Maybe the seer stones in the hat was wrong.
    All the while, the state is asking for an expedited hearing from the 10th. Circuit because perish the thought, those gay MARRIED couples must be dealt with ASAP.
    And now, now we have the clown car entering the ring and asking for….wait for it, wait for it…
    .More Time to prepare arguments for same-sex marriage ban. WT*???
    Really Utah, is that the type of leadership you want? Bunch of Clowns?
    (my apologies to clowns everywhere)

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