December 21, 2013

Full Heart but Troubled Mind - Utah's Gay Marriage

After lengthy posts on other's blogs, I decided I should just make a post of my own. While I am disappointed in the way Utah has come to recognize gay marriage (via a judge instead of the will of the people), I think this is awesome news and I am very excited. I hope one day to find a man to take in marriage!

There are two things of which I want to publicly state my current opinion. I say "current" because as any human my opinions change or alter over time. In the past I opposed gay marriage. Last year my opinion started to shift and then completely changed in support of gay marriage. However, the reasons I support gay marriage are often times different than many. Also I don't prescribe to some of the assumptions others do when it comes to definitions or ideas. That is why I want to, today, state those differences. 

First –
I am a conservative libertarian. I believe People are free to live their own life as they see fit. I believe in a small government whose actions do not interfere with one's life except where instructed to in the Constitution. I believe all people are created equal. I believe in the inalienable rights of life, liberty and the pursuit of happiness. I believe that the constitution does not guarantee happiness or equal outcomes, but it guarantees the ability for one to work for their own happiness and situation in life. 

I hear often that marriage is an inalienable right, a human right or something we are entitled. An inalienable right is something that by mere birth you are entitled too. By being born you are entitled to life, that is not something someone should be able to take away from you. The moment something created or introduced by man, is introduced, the attainment of that thing is not an inalienable right. By the fact of being born I am not entitled to an Apple computer (as a very simplistic example). By the fact of being born I am not entitled to a good paying job. 

When I hear marriage being described as an inalienable right, human right or something we are entitled, I cringe. Inalienable: "unable to be taken away from or given away by the possessor". Marriage is a human invention, function of God, or governmental recognition. This invalidates marriage as an inalienable right.

Marriage is, for all intents and purposes, a legal privilege. "Privilege (legal ethics), a permission granted by law or other rules". Because marriage is a government recognition, and/or a religious sacrament makes it a privilege, not a right. Therefore marriage is not an inalienable right, it is a legal privilege.

Because I am a conservative libertarian, I believe in small and limited government. If I had my way, marriage would not be in existence as we know it in America. Instead it would be much like marriage in England. In England, they have a common marriage which is given to all and afterwards marriages of a religious nature can take place. This is done, so that the Queen may attend any marriage ceremony. The religious ceremony is separate and done on top of the common marriage, but not given any special privilege by law. In England, Mormons are married in a common marriage, done much like a traditional wedding in America and afterwards they go to the Temple to be sealed (religious marriage on top of the common marriage). 

I prefer this type of marriage than America's version. Give everyone equal legal footing, and then religious marriages can be done on their own accord without government intervention. Basically getting the government out of the marriage business as much as possible. But in America, there is no separation. A marriage is a marriage, therefore, all should be given equal opportunity to be married, to attain the legal status and privileges. Because all people should be equal before the law.  

Second –
This action in Utah wasn't the will of the people and so to declare Utah a changed state is incorrect. A majority of people in Utah voted to deny gay people the access to marriage. A lone judge overturned hundreds of thousands of people's vote. A democracy is a majority rules form of government. This isn't perfect, but it is the best form of government currently conceived of in the world. A lone judge to overturn a law voted by a majority is a dangerous precedent. 

Yes, majority rule brought segregation, brought miscegenation, and brought Hitler (in Germany). But what happens when we allow judges to overrule a law voted by a majority or authority to change laws? Should a judge be allowed to rule in a closed and secret court that the government is allowed to spy on its citizens? Should a judge be allowed to rule that a government drone is allowed to kill a U.S. citizen abroad with out a trial? Should a judge be allowed to rule that a sixteen year old boy who killed four while driving drunk isn't guilty because he is too rich and wasn't taught correctly from his parents? (All these examples are true by the way). 

While a rule of the majority has brought us gross and horrifying things, a rule by a lone judge can bring us equally gross and horrifying things.

Governing isn't a perfect science. Politics are messy and sometimes things go horribly wrong. Remember that the Supreme Court didn't rule in favor of Prop 8 from California. Instead it said that the plaintiff had no standing in SCOTUS, and therefore the lower courts ruling stood. In the decision the justices stated that such a topic (gay marriage) should play out in the states, over a period of time, in order to come to a solid decision and not a volatile, socially unsettled law (Ginsberg referred to Roe v. Wae as an example of something the court should have let play out in the states instead of in the Court). Judges are tasked with determining the constitutionality of laws passed by the people, but I agree with the assessment by Ginsberg that it is important for things of this magnitude and importance to play out across the country than by a quick change of law by judges. I think it applies to a federal court judge as well. 

Conclusion –
Aside from these points of alarm and disagreement, I'm very excited about gay marriage in Utah. My heart is excited for my dear friends whose wedding ceremony last year is now officially recognized by the state and the law. My heart is full for the potential for my own marriage to a man of my choosing. My heart is glad for all those who's love is now given full and equal recognition and legal privilege. 

But my mind is troubled by the eroding definition of an inalienable right and the harm that can come from a growing list of what is considered inalienable. My mind is worried about the ease of overruling a vote of the majority. My mind is concerned for the volatility of such a happy law.

My mind is trouble while my heart is full. 


  1. I think your examples of things courts should not decide are not exactly one-to-one comparisons. The issue of same-sex marriage is a constitutional law issue. It's built on decades of case law in this area, which has decided, among other things, that marriage is "one of the basic civil rights of man," and that the government really had no interest or right in preventing marriages in any number of instances, including being in prison (Turner v. Safley, Loving v. Virginia). The courts have developed an elaborate system of scrutiny (rational basis, intermediate scrutiny, strict scrutiny) to determine when to what degree the state is allowed to treat people differently in different circumstances. Courts have ruled differently with regard to what type of scrutiny gay people require (the Utah case judge said that gays generally should get intermediate scrutiny, but that marriage cases in general require strict scrutiny), but in all cases, the state is required to at least show that laws that treat different groups differently are rationally related to a legitimate government interest (something other than, for instance, preserving tradition). Most recent court cases have determined that gays should get intermediate or strict scrutiny with regard to marriage, but that restricting marriage to opposite-sex couples does not even have a rational basis. These decisions cite one another all the time, so in that sense, this isn't the decision of one judge, but rather of the entire US legal system, following the Anglo-Saxon tradition of common law in which judges have ruled on legal precedent since the 11th century. In fact, the Utah decision is funny because the judge spends a long time citing Antonin Scalia's anti-gay marriage and anti-sodomy decision that suggest that existing precedents make the legal argument against gay marriage untenable.

    Most of the other issues you cite don't really deal with constitutional law. There is a constitutional question involving wiretapping (I believe there was a case last week when a court ruled much of what the NSA is doing was unconstitutional),but the secret FISA courts don't make decisions about constitutional precedent - they just execute on existing precedent. As for the drunk driving case, that was a matter of a single judge ruling in a criminal case. Judges have some broad leeway in these situations and sometimes they make bad decisions. Legislatures can reign them in through mandatory minimum laws in these cases if they like . The issue of drones I guess would be a constitutional question, but I don't think it had come up in court yet. So far, the executive branch had been interpreting the existing case law on its own.

    As for the Prop 8 decision, the justices may have wanted gay marriage to play out in the states, but that alone was the grounds for dismissing it on standing. Courts aren't allowed to say "hey, this violated existing precedent regarding people's rights, but we would really rather not decide this in a way that would make people mad." They dismissed it on standing because the proponents of Prop 8 did not have a particularized interest in defending the law. The Supreme Court's conservatives would really rather that governors and presidents not enforce laws they don't believe are constitutional and then have people whose interests were violated challenge it in court. Of course, the fact that no one had a particularized interest in Prop 8 (i.e. no one could actually show damages by its lack of enforcement) suggests that the law couldn't stand anyway.

    I guess what I mean by my long ramble is that winning hearts and minds is important, but the decisions legal system are not some tyranny by standalone judges. They are part of a longstanding method for changing policy and it seems to be increasingly certain that gay marriage bans shouldn't stand.

    1. Evan – Your points about the arguments within the judge's decision are good and the development of rational basis, intermediate scrutiny and strict scrutiny are sounds and developed tests from the Supreme Court. I am not trying to argue the merits of the decision, as I tend to agree with them from Judge Shelby. I was conversing more about the overall ability for judges to independently strike down a law voted on by a convincing majority of a states citizenry. While Loving v. Virginia provides a lot of fetter for this judge and others to use for gay marriage bans, SCOTUS still has a yet to rule on this issue. I believe Prop 8 was rule back to the lower courts by some strong liberals and conservatives on the court, not just conservatives (as Alito said they should take the case just to settle the issue). I really was basing my thought around the reason for dismissing the case not on the Court's official decision, but on interviews from the justice's (mainly Ginsberg) before and after the case. But again, your understanding of constitutional law and tests applied within while true and right, are not was I was focusing on.

      As for the "right" issue, calling marriage a civil right doesn't bother me as much as calling it an inalienable right, but I still worry about the eroding definitions of rights.

      Nonetheless, thank you for your comment you obviously know you stuff.

    2. I'm totally with you on inalienable rights. I feel like that should mean that it is impossible to violate that right, not that one shouldn't. Very few rights fit in that category.

      I guess what I was getting at with the tests was just that one can read this not as the act of a single judge, but of a judiciary as a whole. I agree that the liberals on the Supreme Court also wanted to punt on Prop 8, but as more challenges go through the court system and the case law solidifies, I think judges will find themselves increasingly compelled to support the right to same-sex marriage.

  2. Trevor, I agree with many of your points. And I also agree with many of the points made in the comment above mine. I guess my biggest point of debate as far as your post goes--I actually think I saw a comment you made on someone else's post that talked about this too--is about marriage not being included as an inalienable right. If we are guaranteed the "pursuit of happiness," couldn't marriage fall under that category? At what point do we draw a distinction between a philosophical pursuit of happiness, as a purely internal process, and the actual things that ARE that pursuit, à la marriage? I completely, totally agree with your idea that we should adopt the British system of marriage, as it seems it would solve many of the issues surrounding marriage here. But if I am not hurting or affecting anyone else, shouldn't the ability to marry the person I love be included in my inalienable right to the pursuit of happiness, whether marriage is a man-made institution or not? Hmm... We really should just go for coffee/hot chocolate and have a friendly debate about all this. I'd love to hear your ideas. Oh wait, I live a thousand miles away. Dang it! ;)

    1. The good old pursuit of happiness. This little bugger, in my opinion, should not be used in a wide scope application. I believe pursuit of happiness guarantees a a life free from unnecessary government restriction, as much of the Constitution then goes to restrict what the government can't do. I do not believe pursuit of happiness guarantees things to us. If we applied that application would we not all be guaranteed anything that makes us happy? Where would the guarantees stop? My understanding of the Constitution is while it is a freeing document (from government tyranny) it is very restricted in what it guarantees people. That is why we never adopted a bill of human rights like other countries have. Other countries Bill of Human Rights often tell the people things the government is bound to do FOR them. Our Bill of Rights tells the people things the government is bound from doing TO them. So I don't read the pursuit of happiness as a phrase guaranteeing things to us, but instead guaranteeing a restriction of government interference. Hence my idea of a English system of marriage. Im all about small, restricted government, which would bring marriage equality to all :)

      I always love a good, genuine and respectful political discussion (hence why I have to avoid it with most people). If you ever are in my area I'd love to sit down a talk about things. Where do you live?

    2. First, if I can first apologize for littering your post with comments, reading these decisions is sort of a hobby of mine that I always jump to chat about.

      So, keep in mind that the pursuit of happiness is from the Declaration of Independence, not the Bill of Rights. It isn't legally binding. The key bit used to defend the rights of minorities is the equal protection clause. However, this gets really interesting, because the NJ Constitution states that "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness." If you read the NJ same-sex marriage decisions (Garden State Equality v. Dow and Lewis v. Harris), they come to really different conclusions about what tests the case has to pass. Totally worth checking out!

  3. Great post. And I agree with many of your points. As a Utahan, I am pleased as punch to have had amendment 3 struck down. It was ridiculous and overreaching (as was the worry when it was passed earlier this century). However, SO many people don't believe in Judge Shelby's decision; that makes me a bit sad in realizing that, though it's legal, gay marriage still won't be "recognized" by the people in the state. I still have to worry whether or not my friends and family will come to my future wedding, because many of them flat-out believe it's wrong.

    We still have a lot of educating to do.