With the staggering divorce rate in this country and within religions, it is curious that Utah is denying marriage equality to homosexuals in the name of keeping the sanctity of marriage intact. The U.S. has the sixth highest divorce rate in the world at 50 percent. According to Deseret News, Utah has a higher than average divorce rate compared to the national average. Given Utah’s desire to strengthen and support marriage, it seems to me they would be better served putting $2 million toward marriage counseling, financial counseling, fighting spousal and child abuse, and encouraging a vibrant and strong economy rather than spending it on fighting marriage equality for homosexuals. When one looks at the argument made by the State of Utah, and the amendment in question, it is clear their argument is a religious one, not a legal one, and in this country we are ensured freedom from religion as much as freedom of religion. Utah and its moral majority may not impose their religious views on the minority here, and trying to do so in light of the judge’s reasonable ruling makes the state look like it is engaging in political pandering rather than governing. It is apparent that it would be more prudent for the citizens to be on the lookout for unlawful or unconstitutional lawmakers rather than activist judges.
“Activist judge” is a dirty little label bantered about regularly these days. It is used as a way to discredit the judge and his or her ruling by those who don’t like it. While there is reason to hold judicial activism in disdain, activism by judges is the exception rather than the rule. An activist judge is someone who creates law where none exists rather than using existing law to determine the legality of cases brought before him. When Judge Shelby ruled that Utah’s amendment denying marriage to same-sex couples was unconstitutional, he was labeled the dreaded “activist judge.” The problem with that assertion, however, is that he had solid legal reasons for his decision stemming from the Constitution. He stated that when there is a conflict between state’s rights and individual rights, individual rights take precedence. He referenced the 14th Amendment as the guarantee of those individual rights. Judges using the law to determine the legality of laws keep an out-of-control majority or unconstitutional lawmakers in check. Without that check by the judiciary, majorities can easily trample on the rights of minorities and individuals. Our founding fathers knew this when they implemented those checks and balances to guard against such abuses. This is why we should be applauding judges like Shelby and demand that more be like him.
But many bemoan Shelby’s ruling, stating that because the majority voted this amendment into law his ruling is activism at its best. But people who make this argument do not understand constitutional rights or the law. Furthermore, they are ignoring the legal precedent that set the stage before this case came to light. Like Utah, the people of California voted and passed Proposition 8 to amend the California constitution to define marriage as being between one man and one woman. Like the couple here, a gay couple sued under the 14th Amendment. The court agreed that Prop 8 was unconstitutional and struck it down. The state of California chose not to appeal, but as we all know, the case went before the Supreme Court, which found that the private entity appealing the case had no legal standing, and thus the California ruling was upheld and Proposition 8 was struck down. Similarly, a gay spouse who had been married for 44 years before her spouse died fought the Defense of Marriage Act (DOMA) after she was denied death benefits because gay marriage was not recognized under the Act. She sued that it was unconstitutional under the 5th Amendment, and the Supreme Court agreed and DOMA was struck down. Based on these cases, there is plenty of precedent for Judge Shelby to rule the way he did and for Utah to read the writing on the wall. Had Judge Shelby ruled in favor of the State of Utah, he would have been abdicating rather than ruling.
Trevor Sanders, a local attorney, recently quoted the book “Terms of Engagement,” saying that between 1952 and 2002 Congress passed 15,817 laws – only 103 of which were struck down by the courts – and then questioned the plausibility that the federal government hits the constitutional mark 99.5 percent of the time. Sanders then stated that the federal judiciary, led by the Supreme Court, has, since the early 20th century abdicated its responsibility to meaningfully adjudicate disputes and serve as a check on the legislative and executive branches of government (abdicating meaning giving up their duty and power to act in the way they are supposed to). The information from the book indicates that our courts are very far from being activists and swing detrimentally to the opposite, abdicating their duty to check legislatures and voting majorities. What we need are more judges who are willing to do their jobs, like Shelby did.
But rather than heeding the judgment, law, legal precedent and the solid constitutional argument by Judge Shelby, the State of Utah is willing to go all the way to the Supreme Court with a $2 million budget to do so. While it is normal for defeated parties to appeal their case, this one seems to be a losing battle and an irresponsible use of taxpayers’ dollars. When Utah sought a stay on the decision, stating that a “chaotic situation” would ensue, not only did Shelby deny it, the 10th Circuit Court did, as well. What that means is the 10th Circuit Court was unconvinced that: 1. Utah would likely win its case; and 2. that not granting the stay would cause “irreparable harm.” These are bad signs for Utah heading to the Supreme Court, which, in the end, may rule gay marriage legal across the country once and for all. If that ends up being the case, Utah will not only make history but find its place on the wrong side of it.
More wisdom, foresight and empathy should be required of the leaders of this state, given all that is at stake. It is foolish for Utah to put so much money toward this fight because, ultimately, their appeal is one meant to deny equal rights to certain individuals indefinitely. They do not have the moral high ground on this, no matter how many residents agreed to the amendment. The money they are spending on this case is strikingly similar to the case they are fighting on public land, which has even less of a chance of a win. Both cases show the state’s obstinate willingness to waste precious money that could be better spent elsewhere and to act in a fiscally irresponsible manner. Taxpayers’ dollars could be better spent on education, pollution mitigation or helping the poor and homeless; or, as I stated above, in strengthening marriage legitimately. Furthermore, it is downright hypocritical – in light of the cohabitation ruling that was a big win for polygamists – that Utah is not seeking a stay with equal vehemence against that.
As Judge Shelby stated in his decision, “The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.” Spending $2 million to deny equal rights to same-sex couples perpetuates inequality, demeans the dignity of all people and ultimately does nothing to strengthen marriage. Furthermore, it is a reckless waste of money for a mean-spirited crusade meant to hurt individuals and keep them second-class citizens. If the sanctity of marriage and family is really at the heart of this issue, Utah would be better served spending that money helping struggling couples and families in an educated, realistic and meaningful way that lifts all people up, not just the ideology of a religious majority.
Written by Greta Hyland
