Tuesday, December 24, 2013

Judge in marriage case: Public opinion doesn't override rights

Posted By on December 24, 2013, 7:49 PM

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An attempt today by the state of Utah to halt any further gay marriages from occurring in Zion was denied by Federal Judge Robert J. Shelby, who said he would not prohibit same-sex Utahns from exercising their established constitutional rights.---

On Friday, Shelby struck down the state's laws barring same-sex marriage, finding that the laws violated individuals' equal-protection rights under the 14th Amendment of the U.S. Constitution. “Those findings prevent me from making the relief that the state is seeking today,” Shelby ruled, saying he would not upset the “status quo” he established last week by allowing same-sex couples to marry.

Since Shelby's initial ruling, hundreds of same-sex couples have married, leaving state leaders scrambling to halt what Gov. Gary Herbert called an attempt to “override the will of the people of Utah” by an “activist judge.”

The state's failure to convince the judge to issue a stay, which would have halted same-sex marriages until a higher court could rule on the case, hinged largely on procedural issues. Shelby indicated that in similar cases, it's common for a motion requesting a stay to be filed before a ruling is handed down. In such a case, Shelby said a judge could then rule on the merits of the case, while simultaneously issuing a stay.

At the time of his ruling Friday, Shelby said, “We had no such request from any party.”

The denial of the stay was another victory for same-sex marriage advocates in the conservative cradle of Utah, but there was little hope that it would last. Officials said the United States Court of Appeals for the 10th Circuit, in Denver, could grant its own stay as early as today. Due to procedural errors, the court of appeals had already denied two requests from the state seeking an emergency halt to the weddings.

Brian Tarbet, general counsel for the Utah Attorney General's Office, who sat in on the hearing, said an appeal would be filed immediately.

“Obviously, we're very disappointed with the ruling, but not surprised,” said Tarbet, who up until today was the state's acting attorney general, in place of John Swallow, who resigned in November amid a sea of corruption allegations. “It is what it is and we'll have to work from here.”

In the meantime, same-sex couples who lined the halls at the Salt Lake County Government Building awaiting a marriage license continued exchanging vows.

An attorney for Salt Lake County, a co-defendant with the state, told Shelby that some county clerks worried that in the future they could be prosecuted for issuing improper marriage licenses. The judge quieted these concerns, stating that his ruling Friday was meant to strike down any law that would prevent same-sex couples from realizing their rights.

“I am excited that people who have been standing in line to get married can get married and should get married,” said Peggy Tomsic, an attorney representing same-sex couples who challenged the state's laws. “What I hope it does is give the plaintiffs in other states equal marriage rights.”

In his arguments to the court, Assistant Attorney General Philip Lott called Shelby's decision to strike down Utah's laws “unprecedented,” and said it posed a “threat of irreparable harm to the democratic process in Utah.”

Lott then said the state was concerned for “these citizens, as well,” referring to same-sex couples, noting that the state believes if a higher court were to overrule Shelby's decision, it would invalidate the same-sex marriages that have taken place. He also cited the state's concerns for “certainty and order,” and cautioned that administrative headaches could result from the influx of gay marriages.
But Shelby questioned whether these alleged harms outweighed that of denying a person's fundamental rights. “Is there also irreparable harm when people are denied their constitutional rights?” he asked.

Shelby's ruling is the first from a state since the U.S. Supreme Court earlier this year found that the federal government's Defense of Marriage Act, or DOMA, violated individuals' constitutional rights. Shelby noted this today, saying he wished his ruling wasn't the first interpretation of the law in the post-DOMA world, but that since it is, he interpreted the law to the best of his abilities. And he reminded Lott that he felt his decision, while largely untested by the courts of the land, rests with the majority of the U.S. Supreme Court.

In her arguments, Tomsic fired an array of pointed accusations at the state, noting its failure to file a motion requesting a stay until hours after Shelby made his ruling. When this motion was filed, she said, it was nothing more than a five-page “memo” that was a “repackaged and dressed-up version of that argument” the judge had already “rejected.”

During his arguments, Lott conceded that the timing of the ruling, the Friday before Christmas, caught him by surprise. “It would have been nice to have had notice,” he told the judge.

Tomsic called the state's reasoning for the stay “shallow and nonexistent,” and said she anticipated the same “ineffective and meritless” arguments when the case is heard by the 10th District Court.

And she argued that “ping-ponging” the marriage laws of Utah back and forth will hurt Utahns more than permitting same-sex couples to marry.

Asked if the controversy surrounding Swallow's rocky tenure in the AG's office impacted the state's handling of the case, Tarbet said it did not. Even so, Shelby made it clear that the state's failure to file a motion requesting a stay prior to a ruling that the state's laws were unconstitutional loomed large in his decision to deny the subsequent request for a stay.

Tomsic doubts the already-granted same-sex marriages could be overturned. It would be “unprecedented,” she said, for a government to retroactively deny lawful marriages.

Shelby's ruling specifically found that Amendment 3 of Utah's constitution, which stated that marriages were legal unions only between a man and woman, discriminated against same-sex couples. This amendment was approved by 66 percent of the vote in 2004. As such, Lott argued, Shelby's ruling was upsetting democracy in Utah.

But in his ruling, Shelby noted that under the equal protection and due process clauses of the 14th Amendment, public opinion and historical significance do not cancel out a person's fundamental rights. The case used to bolster this argument was handled in Virginia in 1967 and dealt with the prohibition of interracial marriage. And, just as public opinion polls show the majority of Utahns today support bans on same-sex marriage, the majority of Virginians in 1967 opposed interracial marriage.

“What we have in the United States is the 14th Amendment to the constitution that by its very terms cannot be dictated by the will of the people,” Tomsic said. “The Supreme Court said, 'Great, you can have that opinion, but it violates the constitution.' People do not get to decide what individuals' rights are under the constitution.”

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