Judge Strikes Down Utah
Traditional Marriage Laws, Calls Them 'Irrational'
by Ken Klukowski 21 Dec 2013, 2:37
PM PDT
One week after a federal judge in Utah held laws
against polygamy are unconstitutional, another Utah federal judge has held that the U.S.
Constitution also contains a right to same-sex
marriage, describing laws defining marriage as between men and women
“irrational.”
In his 53-page opinion for Kitchen
v. Herbert on Dec. 20, U.S. District Judge Robert Shelby—who was appointed by
President Obama in 2011—compared marriage laws that do not include homosexual
pairings to racist laws. He noted that in its 1967 case Loving v. Virginia, the U.S. Supreme Court struck down as a
violation of the Fourteenth Amendment a Virginia
law that did not allow a white man to marry a black woman. He characterized the
constitutional right being violated in Loving as “the right to make a public
commitment to form an exclusive relationship and create a family with a partner
with whom the person shares an intimate and sustaining emotional bond.”
However, the ruling in Loving does
not appear to stand for what Shelby
says it does. The Supreme Court in Loving reasoned that the Fourteenth
Amendment was adopted in 1868 after the Civil War primarily to eradicate all
laws of racial discrimination. A law that did not allow black and white
Americans to marry is a textbook example of a law that violates this central
principle. It has no application either to homosexual unions or to polygamous
marriage, where last week another federal judge in Utah invoked Loving to support declaring a
right to multi-person marriage.
Shelby noted that the Supreme Court has said that fundamental
rights in the Constitution are only those that are “deeply rooted in this
Nation’s history and tradition,” then cited an older Supreme Court case framing
the question of whether such a right is “implicit in the concept of ordered
liberty.” He declared, “Both same-sex and opposite-sex marriages are therefore
simply manifestations of one right—the right to marry—applied to people with
different sexual identities.”
However, the Supreme Court
clarified in 2010 in McDonald v. Chicago that fundamental rights are those that
are essential to an American system of ordered liberty, and that to determine
if such a right is truly essential for American liberty, a court looks to
whether it is deeply rooted in American history and tradition. Marriage between
one man and one woman fit this description, which is why laws disallowing
marriage because of skin color are unconstitutional. But same-sex marriage was
declared legal for the first time in this nation in 2003 in Massachusetts, so it is not grounded in this
nation’s history and tradition back to 1789, as are all other fundamental
rights.
Shelby also discussed U.S.
v. Windsor, the
Supreme Court decision from earlier this year in which the Supreme Court by a
5-4 vote struck down part of the federal Defense of Marriage Act (DOMA). Yet
Justice Anthony Kennedy’s opinion only struck down the part of the law dealing
with federal programs and definitions and explicitly acknowledged the states’
authority to define and regulate marriage. He also expressly stated that Windsor was not ruling
upon such state laws. After noting all this, Shelby
nonetheless held that Windsor’s reasoning gave
him authority to strike down Utah’s
state law on marriage.
In part of Shelby’s opinion, he cited as supporting a
right to same-sex marriage the U.S. Supreme Court’s 1888 case Maynard v. Hill,
where the Court held that marriage is “the foundation of the family and
society, without which there would be neither civilization nor progress.” He
also cited the 1923 case Meyer v. Nebraska,
where the Court held that it is a fundamental right “to marry, establish a home
and bring up children.”
Yet these cases, too, do not
support same-sex marriage, as those cases’ clear context is marital unions that
can produce children through the sexual intercourse of its participants. That
is why without marriage there would not be a continuing civilization, because
there would not be a next generation to continue that civilization. In getting
married, a couple has children that are born into that home and which the
couple must raise.
The judge ruled, however, that
recent Supreme Court cases on marriage also tie it to a right to privacy
(which, like marriage, is never mentioned in the U.S. Constitution). He leans
heavily on the Supreme Court’s 2003 decision Lawrence
v. Texas,
where Justice Kennedy elaborated a broad theory of constitutional liberty, over
the objections of justices who emphasized they are bound to adhere to the
Constitution as it is written and that only the American people can choose to
change those words through amending the Constitution.
In Lawrence, Kennedy wrote that the Founding
Fathers “knew times could blind us to certain truths and later generations can
see that laws once thought necessary and proper in fact serve only to oppress.
As the Constitution endures, persons in every generation can invoke its
principles in their own search for greater freedom.”
Shelby claimed that America has changed for the better
in its “knowledge of what it means to be gay or lesbian.” He defined the
constitutional right to marry as the right to choose someone with which they
think they “are able to develop a committed, intimate relationship.” He then
mowed down Utah
laws on marriage by holding, “The court, and the State, must adapt to this
changed understanding.”
The judge’s opinion also declared
sexual behavior to define a “suspect class” of people, which means those
defined by their sexual activity enjoy protection equal to that which the
Constitution secures for matters pertaining to race. He then additionally held
that traditional marriage laws are not at all related to advancing any
legitimate public interest and as such are completely irrational.
Shelby also briefly discussed religious liberty. He did not
discuss any of the growing instances of religious persecution arising from
same-sex marriage, such as a New Mexico
photographer or Colorado
baker sued for their religious beliefs. Instead, he made the Orwellian finding
that his ruling will actually enhance religious liberty by empowering liberal
religious groups to conduct same-sex ceremonies.
It is telling that this judge does
not mention even once that a fellow judge on his court had just declared a
right to polygamy so that people can demand to marry multiple people of either
sex, as Breitbart News reported just last week. Everything Judge Shelby says in
Kitchen would also require the existence of such a right, but he utters not one
word about this elephant in the room, likely understanding that it would cast
in a very different light his contention that those who believe marriage is the
union of a man and woman are simply and utterly irrational.
Utah will likely appeal this case to the U.S. Court of Appeals for the Tenth Circuit, and from there
possibly the Supreme Court.
U.S.
Court of Appeals for the Tenth Circuit
Scott M.
Matheson Jr. is a judge for the U.S.
Court of Appeals for the 10th Circuit, and was an associate at Williams and Connolly.
Note: Gregory B. Craig
was a partner at Williams and Connolly,
the White House counsel for the Barack
Obama administration, and is a trustee at the Carnegie Endowment for International Peace (think tank).
Jessica Tuchman Mathews is the
president of the Carnegie Endowment for International Peace (think tank),
a director at the American Friends of Bilderberg (think tank), a board
member for the International Crisis
Group, was an honorary trustee at the Brookings
Institution (think tank), and a 2008 Bilderberg conference participant
(think tank).
Ed Griffin’s interview with
Norman Dodd in 1982
(The investigation into the
Carnegie Endowment for International Peace uncovered the plans for population
control by involving the United
States in war)
Lee
H. Hamilton is an honorary trustee at the Brookings Institution (think tank), and his nephew is David F. Hamilton.
David F. Hamilton
is Lee H. Hamilton’s nephew, and a judge
for the U.S. Court of Appeals for the
7th Circuit.
Foundation
to Promote Open Society was a funder for the Carnegie Endowment for International Peace (think tank), the Brookings Institution (think tank), the
International Rescue Committee, and
the Robin Hood Foundation.
George
Soros is the chairman for the Foundation
to Promote Open Society, and a board member for the International Crisis Group.
Jon M. Huntsman
Jr. is a trustee at the Carnegie
Endowment for International Peace (think tank), was a distinguished fellow
at the Brookings Institution (think
tank), an ambassador to China
for the Barack Obama administration,
and the governor for the Utah state government.
Clifford S.
Asness is a director at the International
Rescue Committee, was a leadership council member for the Robin Hood Foundation, and supported same-sex marriage in New York.
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