Meditiations upon Kitchen v. Herbert

Last Friday afternoon, Federal court judge Robert J. Shelby ruled that Utah Constitutional Amendment 3, which was passed by Utah voters in 2004 and which defines marriage as a legal union between a man and a woman, was unconstitutional. The decision effectively legalized same-sex marriage in Utah.

Reaction has been fairly predictable. Gays, civil libertarians, and those of a liberal political bent are celebrating the decision. Extreme right-wingers are decrying Shelby as an Obama-appointed activist judge who has overturned the will of Utah voters and have started gathering petitions to have the law reinstated and/or have Shelby removed from the bench.  The State of Utah has appealed and continues to appeal the ruling and has asked for multiple stays, all of which have been denied.  Most counties are now issuing marriage licenses for same-sex couple, although a few of the more politically conservative counties have dragged their feet on procedural grounds. State and local agencies are trying to figure out just how to implement the change in policy. And of course everybody's talking about it.

So here are my thoughts.


Meditation 1

First and foremost: Judge Shelby made the right call under the law.

The text of Utah Constitutional Amendment 3 reads as follows:

1. Marriage consists only of the legal union between a man and a woman.
2. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect. (emphasis mine)

As written, this amendment is (was) constitutionally indefensible.  It does not allow for civil unions or domestic partnerships.  It does not allow cities or counties to make their own decisions or policies concerning residents and/or employees (although Salt Lake City did so anyway under Mayor Rocky). It does not even allow for common law marriage between heterosexual couples.  It essentially divides people into two distinct classes: married heterosexuals, and everyone else.

Why is this a problem? It ultimately comes down to money. (Doesn't it always?) Under this Amendment, married people have rights that others don't have: insurance enrollment, state and federal income taxes, estate taxes, even visitation and custody rights. And whether or not you agree with the nature of a relationship, denial of such rights based on that relationship is in violation of the Equal Protection clause of the Fourteenth Amendment to the United States Constitution.

So no, Judge Shelby didn't overturn the will of Utah voters. The Constitution did.

The problem was the Amendment itself. It was too poorly written to survive judicial review. The way the framers of the Amendment chose to phrase it guaranteed its eventual demise.  It was dead the moment it went on the books.  Judge Shelby had no legal or ethical choice other than to overturn the Amendment. 

Incidentally, I remember the outcry in '04 when the Amendment was adopted, how gays and their supporters railed against the Amendment and how it only proved just how intolerant Utah and its residents were. And I remember thinking, "What are you complaining about? This is the best thing that could have happened for you. In five years, the courts will decide that this Amendment is unconstitutional, they'll strike it down, and gay marriage will be legalized in Utah. You should be celebrating."

I was only wrong with regard to the time scale.


Meditation 2

I've wondered in recent days about the whole process of amending the state Constitution. I've always been a little wary of 'amendment by referendum'. To me, trying to get the state Constitution amended in an election is an admission that you can't get it done through established, legitimate legal and legislative channels. It strikes me as an and run around the checks and balances that are supposed to be there. But that's a separate issue, I suppose.

So, back to the topic at hand: California voters passed an amendment to its state Constitution (Proposition 8) defining marriage as a legal union between a man and a woman.  A subsequent state administration declined to enforce that law, and the Supreme Court of the United States said, in essence, that it had no problem with that.

Utah voters passed Amendment 3, and the state has actually enforced it. A federal judge said that doesn't work either.

So I have to wonder: If the federal government ultimately gets to decide what is legal and what isn't, why even have State Constitutions at all?

Amendment X to the United States Constitution reads as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

But it's starting to feel like the federal government is 'delegating' to itself more and more of the powers that have traditionally belonged to the States.

The definition of marriage isn't the only issue here, of course. Every public school teacher knows about the Tenth Amendment because it's the basis of how public education is administered in the United States. Each state has its own core curriculum and standards tailored to the needs of its students and the resources available to its schools.  But the Federal government has been getting more and more involved in public education of late. (No Child Left Behind, anyone?) A 'power' and responsibility understood for generations to be the province of the States is slowly being assimilated by the Federal government.

Of course, when you live in a society where the citizens expect their government to solve all their problems for them (and re-elect leaders based on their promises to do just that), this sort of thing is bound to happen sometimes.


Meditation 3

Same-sex marriage is now legal in Utah, arguably the reddest of the Red states. And since this is Utah, I think we have to ask this question: How long until plural marriage follows?

Plural marriage, or polygamy, has obviously played a prominent role in Utah's history. The Latter-day Saints emigrated out of the United States and settled in the Salt Lake valley (part of Mexico at the time) in part because Federal and state governments would not protect their right to practice plural marriage as part of their religious culture. (Of course, the Federal government and various state governments also failed to protect the Latter-day Saints' rights to life, liberty, and property in the face of armed mobs, but again, that's a different issue). Polygamy and slavery were regarded as one of the the "twin relics of barbarism" and formed part of the Republican Party's platform in the 1856 presidential election.  The Church of Jesus Christ of Latter-day Saints officially discontinued the practice of plural marriage in 1890 (almost 125 years ago, for those keeping track) after the Supreme Court upheld the Edmunds-Tucker Act that prohibited the practice. Discontinuation of plural marriage was a necessary condition for Utah statehood, and the Utah State Constitution specifically states that plural marriages are "forever prohibited".

But in the light of recent events, "forever" may not be as long as previously thought.

Same-sex marriage and plural marriage have traditionally been opposed on the same grounds, that they represented "immoral behavior".  But clearly that standard no longer applies. If marriage can be a legal union between two men or two women, why can't it between a man and two women, or three, or six, or between a woman and two men, or three, or six? If same-sex marriage is legal, why not plural marriage?

The main difference I see, at least for now, is public support. Polygamists don't have a powerful political lobby or a never-ending source of funding and free advertising from Hollywood. There just aren't enough polygamists out there to base a political movement on them. They don't have the same clout, and therefore the same legitimacy in the eyes of society.

But what if plural marriage became trendy? What if it wasn't just portrayed on cable TV, but on the major broadcast networks? What if polygamist entertainers, legislators, and activists made polygamy as glamorous as gay marriage is now?  Could we see polygamists practicing openly in the future?

(Personally, I'm setting the over/under at 20 years until this happens--and I'm taking the under.)

Perhaps more to the point, now that same-sex marriage has been instituted in Utah, what keeps polygamous factions here and in other locations in the West for arguing for the same legal rights under the same Constitutional provisions?

I expect Warren Jeffs and his crew are pondering that very question somewhere right now.