Utah case offers high court 
chance to rule on gay rights

Federal Judge Robert Shelby has unleashed legal chaos in the state of Utah.

After Utah’s acting attorney general botched his defense of the state’s 2004 ban on same-sex marriages, Shelby ruled Dec. 20 that depriving gays of the right to marry was contrary to the 14th Amendment’s guarantee of equal protection under the law.

The 10th U.S. Circuit Court of Appeals upheld that decision, which was effective immediately. The Utah attorney general had failed to file the necessary legal documents to put a stay on implementation of the law until an appeal to higher courts was completed.

Utah twice unsuccessfully petitioned the 10th Circuit to stop gay marriages, but both appeals were turned down.

Finally the state was able to obtain a stay from the U.S. Supreme Court, where the issue will finally be decided.

During the interval between the Friday ruling enabling gay marriages, and the following Wednesday when Utah Gov. Gary Herbert announced the ban on gay marriage was back with full legal force, a window of opportunity was opened for gay couples to marry.

And they did. About 1,600 gay Utah couples applied for marriage licenses and were wed during those few days.

While the state of Utah refuses to recognize those marriages as legal, they are recognized by the United States government.

“I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” announced U.S. Attorney General Eric Holder Jr. on a Justice Department website video last week. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”

“Judge Shelby’s ruling is particularly significant,” The Washington Post reported, “because it represents the first time a federal court has ruled on the constitutionality of same-sex marriage bans since the Supreme Court struck down the federal Defense of Marriage Act in June (2013). The ruling will serve as a precedent for other states facing challenges to their bans, and it sets the stage for a Supreme Court decision that would apply to all 50 states.”

Some legal experts say the Supreme Court is not yet ready to consider a nationwide repeal of laws restricting gay marriage rights, but it now has a case in its jurisdiction that could force it to do just that.

One of the great ironies of Shelby’s decision to grant marriage rights to same-sex couples was its grounding in the logic of the Supreme Court’s most conservative justice, Antonin Scalia.

After the U.S. Supreme Court overturned the federal Defense of Marriage Act last June, the federal government was required to recognize that same-sex marriages qualified gay couples for federal rights, protections and benefits under the 14th Amendment.

Although the DOMA ruling opened the door for federal recognition of same-sex marriage, it left intact state laws determining the marital rights of homosexual citizens.

In his dissenting opinion on DOMA, an angry Scalia railed at the majority of justices for refusing to recognize that the same logic that led to striking down DOMA would bring the Supreme Court “to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

In his decision in the Utah case, Shelby relied on Scalia’s dissent on the DOMA ruling.

Shelby wrote, “The court agrees with Justice Scalia’s interpretation of (DOMA) and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.”

“As far as this Court is concerned,” Scalia wrote in his dissent in the ruling overturning the Defense of Marriage Act, “no one should be fooled; it is just a matter of listening and waiting for the other shoe to fall.”

The first shoe fell on Utah on Dec. 20. It is only a matter of time until the “other shoe” falls for the rest of the nation.

Let it be soon.

Bill Grant lives in Grand Junction. He can be reached at .(JavaScript must be enabled to view this email address).


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