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Wednesday, December 04, 2013

A Blow At Marriage Bigotry

[W]hether Mormonism will be seriously affected by the destruction of polygamy or not, this degrading practice cannot be very long-lived.

- New York Times, January 8, 1879

Salt Lake Tribune today:

A federal judge will hear arguments Wednesday in a lawsuit challenging Utah’s ban on same-sex marriage brought by three couples who contend the prohibition is unconstitutional.

Each side has asked U.S. District Court Judge Robert J. Shelby for summary judgment — that is, to find their arguments so compelling there is no need for what would likely be a protracted legal fight over Utah’s Amendment 3, the ban approved by voters in 2004.

Attorneys for Utah say Windsor makes clear that states, not the federal government, have sovereign authority to define and regulate marriage. The Windsor ruling is "replete with deferential references" to the state of New York’s power and authority to regulate marriage, state attorneys argue, and criticizes the federal government’s effort to interfere with such decisions.

Windsor "overturned an act of Congress considered an ‘unusual’ federal intrusion" into state authority. Given that, Utah’s own power, decision-making and "exercise of its sovereign authority within our federal system to not include same-sex marriage is entitled to the same respect and deference," the state argues.

Attorneys for the three couples say that under the "binding analysis" of Windsor, their arguments prevail because "Utah’s Marriage Discrimination Laws ... single out same-sex couples to impose a disability on them, and to treat them unequally." Under Windsor, such laws are "irrational, and no legitimate purpose overcomes their purpose and effect to disparage and injure."

"In arguing that regulation of marriage is the exclusive province of the state, the state defendants rely on antiquated opinions and case law, and ignore the patent statements in Windsor to the contrary," the couples argue. Moreover, the state defendants "gloss over" statements in the decision that highlight the need to "respect the constitutional rights of persons" in marriage laws and misinterpret the basis for striking down DOMA, which was equal protection and due process — not federalism.

Uh-oh, it's a slippery slope back to polygamy and slavery!  Suprisingly, I'll have more to say about that later...


December 4, 2013 in Constitution, Schmonstitution | Permalink


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