Uncommon Sense

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Saturday, December 21, 2013

Utah SSM Court Decision a Bad One (Constitutionally Speaking)

I've read the Amendment 3 court decision (striking down Utah's law defining marriage as between man and woman). After reading the decision (PDF), I find that the court's conclusion is based on bad logic and an incomplete survey of history.

It's a badly decided case.

Without a better argument than this case, I will continue to state: nothing in the US Constitution requires Utah to permit any other kind of marriage than one man, one woman. I've studied that Constitution pretty closely, and I understand the reasoning that is applied by the pro-same-sex marriage lawyers; I just don't think it holds together.


Anonymous Anonymous said...

Agreed, and well said Steve

2:36 PM  
Anonymous Ric said...

How does a law that denies marriage to any group of people NOT violate 14th Amendment Equal Protection?

2:56 PM  
Blogger Carl Rossi said...

With the Supreme Court ruling as it did, everyone lost.

Rather than using the normal legislative or amending process, we forfeited our voice and allowed the courts to decide. And the court agreed to take away our voice.

We now are left to either overcome this new and potentially damaging precedent or to sit back and allow others to make the decisions that democracy usually grants to the people.

As for the 14th amendment, I'll leave that to Steve to answer better than I can or to others to read it for themselves.

3:52 PM  
Blogger Steve Setzer said...


It depends on the definition of marriage. I know that sounds trite, but it's the heart of the matter.

BACKGROUND: The 14th Amendment requires that we treat like people and concepts the same. It does not require the same treatment for unlike things. (Children have rights but those rights are more restricted than the rights of adults, for example.)

Then we come to marriage. If marriage is defined as a "union of two persons to promote bonds of affection, sexual pleasure, the raising of children and economic leverage" then the 14th would act as you say. But if marriage is defined as "a union of one man and one woman to promote bonds of affection, sexual pleasure, procreation and the raising of children, and economic leverage" then the 14th would act as I say.

Note two key differences: my formulation says "one man and one woman", and incorporates "procreation" as one of the purposes (not the only one and not a required one).

Under my formulation, a man who felt feelings of same-sex-attraction could enter into marriage only with a woman.

HISTORY: The definition involving one man and one woman was the only applicable definition at the time of the adoption of the 14th Amendment.

TODAY: Even today, the word marriage, standing alone, means "man plus woman, united in a legal ceremony under state authority" -- that's why advocates for change have to add adjectives, such as "gay marriage" or "same sex marriage", or turn marriage itself into an adjective with "marriage equality."

LEGAL EFFECT: The plain meaning of the word "marriage" tells us this: the fundamental right to enter into a marriage means the right for a man to enter into a marriage with the woman of his choice, and for a woman to enter into it with the man of her choice. (Subject, of course, to long standing and constitutionally-upheld bans on incest, child marriage, plural marriage and the like.)

ALTERNATIVE EFFECT: If marriage, on the other hand, is an arrangement between two persons regardless of gender, then of course the Utah law would fail under the 14th.

Incidentally, we see my view reflected throughout classical and historical civilizations; many Greek and Roman poets, priests and politicians were married to women and fathered children while simultaneously engaging in homosexual behavior at the gymnasia, palestrae, public baths etc. Similarly, some kings in medieval Europe engaged in homosexual relationships with courtiers yet married and fathered future kings. (English history is littered with them.)

4:09 PM  
Anonymous Ric said...

1. Does historical exclusion from due process and equal protection necessitate continued exclusion?

2. Doesn't your formulation presume that all social institutions, such as marriage, remain constant and unchanging - and if so, is that realistic and viable?

1:30 AM  
Blogger Steve Setzer said...


1. There's a difference between "violation of due process or equal protection" on the one hand, and "perceived by many as unfair" on the other. The Constitution allows governments to do things that individuals might think immoral.

The 14th Amendment protects rights such as free speech, privacy, bearing arms, marriage and so on within their historic bounds. For example, the 14th ensures that all people of whatever color or belief system have free speech, but it doesn't give any of them the right to shout "fire" in a crowded theater if there's no actual fire.

I assert that the bounds of the term "marriage" have never included same sex marriage, and thus the right cannot be assumed to extend that far.

(Some try to analogize the right to interracial marriage to SSM, but that fails because there were legal interracial marriages centuries before the adoption of the 14th Amendment [Pocahontas].)

2. Social institutions change over time; the proper forum for adapting legal institutions to social change is the legislature, not the courts. (You knew I was going to say that.)

If a right already exists, then the courts should enforce it. If it does not already exist, then the courts should not invent it. That's why the definitional question is the critical issue.

12:01 PM  
Anonymous Ric said...

If we always leave such change to the legislative process, then the civil rights era would never have happened. Is it not true that the Constitution protects the minority from the tyranny of the majority?

4:21 PM  
Blogger Steve Setzer said...

No, actually, most of the civil rights improvements happened through legislation (the Voting Rights Acts, the 24th Amendment [no poll tax], the Civil Rights Act of 1964). Of course there were court cases interpreting that legislation, but the legislation usually came first.

Some civil rights improvements did come about through earlier court cases like Brown v. Board of Education--which dealt with previously existing and acknowledged rights. Nothing new was invented for Brown.

And even Brown occurred in a context of legislative changes in the air in several places. The civil rights era is actually quite complex.

To my knowledge, the courts have never claimed to create new rights. Cases built on due process or equal protection are grounded on some specific existing right. Controversial decisions like Roe v. Wade (abortion) and Lawrence v. Texas (homosexual conduct) are about privacy. Everyone agrees on the definition of the word "privacy" -- it's the application or extent of privacy that drives the arguments over these cases.

There is no expectation of privacy in obtaining a marriage license; it's a public record.

Tyranny of the majority over the minority means denying the minority their fundamental rights (speech, press, privacy, religion). It does not mean denying the minority every thing they want. So yet again, we're back to the definitional question -- IF and ONLY IF the fundamental right of marriage includes SSM would someone be justified in saying that Amendment 3 was the tyranny of the majority. If that fundamental right does not include SSM, then it's not tyranny, it's not a violation of due process or equal protection, it's a very painful election loss.

7:14 PM  
Blogger Steve Setzer said...

Several years BEFORE the Supreme Court heard Brown, President Truman integrated the military by executive order. Beginning decades before that, the courts had been involved in striking down some of the Jim Crow laws for reasons such as interference with interstate commerce. There were also legislative efforts both ways at various times. So yes the courts had a big role, especially early in the 20th century, but the whole story is too complicated to simply say "If we always leave such change to the legislative process, then the civil rights era would never have happened." Change has occurred, and does occur today, through other means.

9:41 PM  
Anonymous Ric said...

But courts have intervened (and yes, I was specifically invoking Brown v Board of Ed) under the mantle of the Equal Protection Clause. And have now done so again, in multiple states, by multiple Judges.

Not coincidentally, this present day civil rights issue is also more complex than one Judge's decision - State legislatures in other states have approved same sex marriage.

You earlier suggest that the 14th Amendment applies only to rights already granted. Marriage is not a right granted anywhere in the Constitution. Isn't marriage, like privacy, considered a fundamental right? And if so, isn't then the 14th Equal Protection Clause very much relevant?

And if so, then the whole debate boils down to 'definition of marriage', per your original contention.

I am reminded of a time when there was a similar argument in this country over 'definition of a person'.

Some of us would argue that the historical interpretation of rights in this country must always err on the side of inclusivity, not exclusivity.

As always, a thoughtful and respectful dialog can be found with you Steve, would that were true throughout the land.

9:29 AM  
Blogger Steve Setzer said...

Likewise, Ric. Civil dialog is too rare.

I hope you and Vicki and the kids have a great Christmas and a great holiday break. Call me sometime and let me know what your next job move is likely to be. (And how the grapes came out this year!)

9:35 AM  

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