# Utah judge strikes down same-sex marriage ban! **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [December 21, 2013, 12:33am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863 "2013-12-21T00:33:30Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![EverwonderWhy](https://avatars.discourse-cdn.com/v4/letter/e/ee59a6/32.png) [@EverwonderWhy](https://boards.straightdope.com/u/EverwonderWhy)\ **Post date:** [January 2, 2014, 4:56am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/202 "2014-01-02T04:56:39Z")
IANAL, but is the State seriously contending it does NOT have support their rational for excluding a class of people from marriage? [From the footnote at the bottom of page 14:](http://www.scribd.com/doc/195068752/Same-Sex-Marriage-Stay-Request) > [@](#): > > In citing this research, we do not mean to suggest that the State has the burden of proving, through admissible evidence, that its views on marriage are correct or sound. To the contrary, a government has no duty to produce evidence to sustain the rationality of a statutory classification. _Heller v Doe_, 509 U.S. 312,320-21 (1993). And indeed “a legislative choice…may be based on rational speculation unsupported by evidence or empirical data.” _FCC v Beach commc’ns_, 508 U.S. 307, 315 (1993). The the research discussed here briefly sketches what Utah and its citizens could rationally believe about the benefits of limiting marriage to man-woman unions. From the top of page 15: > [@](#): > > "And even when contravened by other evidence, they are not subject to second-guessing by the judiciary without a showing that no rational person could believe them. See, e.g. _Vance v. Bradley_, 440 U.S. 93, 112 (1979)(“It makes no difference that the [legislative] facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate such contrariety.”) So, the State of Utah is basically saying it doesn’t have to prove or even substantiate their claim of ‘gender complementarity in parenting’ nonsense and all they have to do is basically declare “these are the core “legislative facts” that lawmakers and voters have relied on in limiting marriage to man-woman unions” and that’s just the end of it? I am not aware of this argument being posed in any of the other marriage equality cases. I find it pretty unbelievable that the state doesn’t need to prove how legislation promotes a legitimate government interest. It’s almost like they are admitting they know they have no credible evidence to support their argument so they are trying to argue they have no burden of proof. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [January 2, 2014, 5:22am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/203 "2014-01-02T05:22:08Z")
> [@EverwonderWhy](#): > > IANAL, but is the State seriously contending it does NOT have support their rational for excluding a class of people from marriage? It’s my understanding, as a layman who has had this explained by Doper lawyers in other similar threads, that to prove a rational basis for a law, the state only has to prove that there WAS a rationale, not that such rationale was factually valid. Rational basis is trumped by strict scrutiny, however, and that’s what orientation seems to be crawling towards case by case. ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [January 2, 2014, 6:12am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/204 "2014-01-02T06:12:54Z")
> [@sachertorte](#): > > In my case, due to _Windsor_ and IRS decree, I have the option to refile my taxes for the past three years, but I am not required to do so. I would expect a similar situation for Utah if it came to that. > > (Is it weird that I’m kind of looking forward to filing taxes now that DOMA is dead?) If I were in your position, I’d be looking forward as well. One of my friends is gay. He lives mostly in California and his Japanese partner lives in Tokyo. Because of DOMA, they were not able to get a spouse visa. With DOMA dead, they got married in his hometown and are applying so that his husband can live with him there. > [@Osiris\_the\_1st](#): > > It depends, many of the “old folks” and even their children and grandchildren still harbor those nasty views, just not openly. Out in the country you still hear the n-word being used by rednecks. Some of us came to our senses and do our best to pass on the ideals of racial equality, but it’s a slow process. > > Many of us also believe in marriage equality and strive to pass that on as well. > > Out of curosity, my wife and I showed our 7 year-old daughter the Cherios commercial with the mixed race family and asked her if she noticed anything unusual about it. She watched it twiced and then asked, “Is it something about the bowl?” That’s OK, it’s a slow process, but it starts by not allowing people to openly express their bigotry. I’ve got a really good friend who grew up in the South. He’s almost 70 now and while he’s not openly racist, he once made a comment to me which I wouldn’t have accepted from anyone else without protesting. Change does take a while, but as more and more same sex marriages happen and people see that the world isn’t coming to an end, I think the prejudice will fade (mostly) away. ---
**Author:** ![EverwonderWhy](https://avatars.discourse-cdn.com/v4/letter/e/ee59a6/32.png) [@EverwonderWhy](https://boards.straightdope.com/u/EverwonderWhy)\ **Post date:** [January 2, 2014, 6:54am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/205 "2014-01-02T06:54:04Z")
> [@jayjay](#): > > It’s my understanding, as a layman who has had this explained by Doper lawyers in other similar threads, that to prove a rational basis for a law, the state only has to prove that there WAS a rationale, not that such rationale was factually valid. Rational basis is trumped by strict scrutiny, however, and that’s what orientation seems to be crawling towards case by case. Thanks, that makes sense. This is where I am confused: I thought strict scrutiny applies when denying a fundamental right? It is my understanding that Judge Shelby didn’t apply strict scrutiny to orientation (which I believe is what the plaintiffs asserted), but since marriage is a fundamental right - strict scrutiny applies. Ergo, doesn’t the state have some burden of proof? [From Judge Shelby’s opinion:](http://www.scribd.com/doc/192787555/Utah-Same-Sex-Marriage-Ruling) > [@](#): > > In any event, the theory of heightened scrutiny that the Plaintiffs advocate is not necessary to the court’s determination of Amendment 3’s constitutionality. The court has already held that Amendment 3 burdens the Plaintiffs’ fundamental right to marriage and is therefore subject to strict scrutiny. And, as discussed below, the court finds that Amendment 3 bears no rational relationship to any legitimate state interests and therefore fails rational basis review. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [January 2, 2014, 6:30pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/206 "2014-01-02T18:30:58Z")
> [@Falchion](#): > > There is no such thing as an interest that trumps the Constitution, so, at best, that argument simply begs the question in a fairly feeble manner. But, the explicit references to things that the government has no valid interest in regulating (bridge clubs and Boy Scouts) suggests that that was not the argument. Particularly with the Boy Scouts where we‘ve actually litigated that question. Utah may not want that to be the question, but its fairly clear to most people that it is one about discrimination and civil rights and the Constitution and not one about regulating bridge clubs. I think Utah’s being purposefully deceptive in their arguments because they know they can’t win on the merits. We’ve seen a lot of this from conservative circles in the past few years. They’ll try to pass it off as a religious rights issue, or a private business issue, or a 1st Amendment issue, but its none of those things. Gay marriage is about civil rights. Everything you can say about this issue can be said about racial minority issues and we’ve pretty much settled that > [@EverwonderWhy](#): > > IANAL, but is the State seriously contending it does NOT have support their rational for excluding a class of people from marriage? > > … > > So, the State of Utah is basically saying it doesn’t have to prove or even substantiate their claim of ‘gender complementarity in parenting’ nonsense and all they have to do is basically declare “these are the core “legislative facts” that lawmakers and voters have relied on in limiting marriage to man-woman unions” and that’s just the end of it? I am not aware of this argument being posed in any of the other marriage equality cases. I’m no law expert but didn’t the Prop 8 people try that and fail? When called out on their reasoning, the “experts” on the Pro-Prop 8 side basically admitted they have no good reason to deny marriage equality. I swear I read their explanation almost word for word like that, it stuck with me because it was such a bold admission from the people who still, after all that, tried to prevent gay marriage. ---
**Author:** ![susan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/susan/32/17537_2.png) [@susan](https://boards.straightdope.com/u/susan)\ **Post date:** [January 2, 2014, 7:00pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/207 "2014-01-02T19:00:30Z")
We’re looking forward to filing our taxes as well. It looks like we’ll owe more, but against the worth of the time it took my wife to do the real return + fake return thing (Oregon), it may come out even, and will certainly be easier. ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [January 3, 2014, 3:00am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/208 "2014-01-03T03:00:29Z")
> [@YogSosoth](#): > > Utah may not want that to be the question, but its fairly clear to most people that it is one about discrimination and civil rights and the Constitution and not one about regulating bridge clubs. I think Utah’s being purposefully deceptive in their arguments because they know they can’t win on the merits. We’ve seen a lot of this from conservative circles in the past few years. They’ll try to pass it off as a religious rights issue, or a private business issue, or a 1st Amendment issue, but its none of those things. Gay marriage is about civil rights. Everything you can say about this issue can be said about racial minority issues and we’ve pretty much settled that Of course, the real issue is that Mormons and other conservative churches see being gay as a sin. Mormons constitute about two-thirds of Utah’s population and dominate its politics. When the Mormons were preparing to do battle to get Prop 8 passed, they had a special broadcast to the various Mormon churches. From the transcript > [@](#): > > On 10/08/08, top leadership from the LDS (Mormon) church (Elders M. Russell Ballard and Quentin L. Cook of the Quorum of the Twelve Apostles, and Elder L. Whitney Clayton of the Presidency of the Seventy) participated in a satellite broadcast officially called The Divine Institution of Marriage Broadcast. > Portions from the broadcast may be found here: [http://www.newsroom.lds.org/ldsnewsroom/eng/news‐releases‐stories/church‐readiesmembers‐on‐proposition‐8](http://www.newsroom.lds.org/ldsnewsroom/eng/news%E2%80%90releases%E2%80%90stories/church%E2%80%90readiesmembers%E2%80%90on%E2%80%90proposition%E2%80%908) > A complete transcript of the broadcast is provided below: > > Elder L. Whitney Clayton: > Following Elder Ballard, Elder Quentin L. Cook of the Quorum of the Twelve will speak to us. Then, Elder Ballard and Elder Cook will jointly provide some additional insight. We will proceed to that point of the broadcast. > > . . . > > “Marriage between a man and a woman is ordained God and the family is central to the Creator’s plan for the eternal destiny of His children. All human beings — male and female — are created in the image of God. Each is a beloved spirit son or daughter of heavenly parents, and, as such, each has a divine nature and destiny. Gender is an essential characteristic of individual premortal, mortal, and eternal identity and purpose." > > . . . > > “Marriage between a man and a woman is central to the plan of salvation. The sacred nature of marriage is closely linked to the power of procreation. Only a man and a woman together have the natural biological capacity to conceive children. This power of procreation – to create life and bring God’s spirit children into the world – is sacred and precious. Misuse of this power undermines the institution of the family and thereby weakens the social fabric. Strong families serve as the fundamental institution for transmitting to future generations moral strengths, traditions, and values that sustain civilization.” These are truths. These are eternal principles upon which the core doctrines of the restored gospel of Jesus Christ are based. Although many in the world may question them, we cannot walk away from them or alter them. These doctrines of family and marriage were established from the beginning and are part of our Heavenly Father’s great eternal plan. The Mormon church leaders linked gay marriage as part of Satan’s plan of destroying all that is good in the world. > [@](#): > > Porn and Divorce > > Marriage and the family are cornerstones of His great plan. Today the pressures and forces working to destroy the divine institution of the family and marriage are many. Divorce rates are growing and out of wedlock births continue to increase, and the scourge of pornography is destroying that which is sacred. Providing prophetic counsel, President Thomas S. Monson said in his first address in General Conference, after being sustained in a solemn assembly: > > “My friends, be strong. The philosophies of men surround us. The face of sin today often wears the mask of tolerance. Do not be deceived; behind the facade is heartache, unhappiness, and pain. You know what is right and what is wrong. And no disguise, however appealing, can change that. The character of transgression remains the same. If your so‐called friends urge you to do anything you know to be wrong, you be the one to make a stand for right, even if you stand alone. Have the moral courage to be a light for others to follow. There’s no friendship more valuable than your own clear conscience, your own moral cleanliness. And what a glorious feeling it is to know that you stand in your appointed place, clean and with confidence, that you are worthy to do so.” > > \*\*Proposition 22 > > \*\*I ask you to heed the words of President Monson. We need to stand up for that which is right. We can take a moral stand on an issue and do it in a respectful way. Today we face the ramifications of a movement to legalize same sex marriage. Just eight years ago, many worked to pass Proposition 22, which prohibited same sex marriage in California. Several months ago, the California Supreme Court ruled against the vote of the people and legalized same sex marriage. We are again participating with a coalition of churches, organizations, and individuals sponsoring the November ballot issue known as Proposition 8. The amendment would change the California constitution to ensure that only marriage between a man and a woman would be legally recognized. We know that it is not without controversy. Yet let me be clear that at the heart of this issue is the essential doctrine of eternal marriage and the role it plays in our Father in Heaven’s plan. > > \*\*Matter of Morality, not Civil Rights > > \*\*President Gordon B. Hinckley addressed the church’s involvement a number of years ago in similar issues in this way. He said, “Some portray legalization of so‐called same‐sex marriage as a civil right. This is not a matter of civil rights. It is a matter of morality. Others question our constitutional right as a church to raise our voice on an issue that is of such critical importance to the future of the family. We believe that defending this sacred institution by working to preserve traditional marriage lies clearly within our religious and constitutional prerogatives, indeed we are compelled by doctrine to speak out.” Then, this. Which come to the core of this issue. They, the Mormon church see homosexuality as a sin. > [@](#): > > \*\*Hate the Sin, Love the Sinner > > \*\*As you do this please do so in a sensitive manner. Our approach must always be with respect for others and their positions and opinions. President Hinckley counseled, > > “I wish to say that our opposition to attempts to legalize same‐sex marriage should never be interpreted as justification for hatred, intolerance, or abuse of those who profess homosexual tendencies either individually or as a group. We love and honor them as sons and daughters of God.” The Mormon church has only recently starting saying “love the sinner” which still is absolutely outrageous. I’m sure that this can’t be entered as evidence in the case, but it’s what’s driving it for the Utah AG office and governor. Just makes me sick. ---
**Author:** ![TimeWinder](https://avatars.discourse-cdn.com/v4/letter/t/bcef8e/32.png) [@TimeWinder](https://boards.straightdope.com/u/TimeWinder)\ **Post date:** [January 3, 2014, 4:15am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/209 "2014-01-03T04:15:22Z")
> [@TokyoBayer](#): > > They, the Mormon church see homosexuality as a sin. Wait, wait. I missed the part where overturning the ban was going to force Mormons to abandon their beliefs and get gay married. I’m definitely for the ban now! ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [January 3, 2014, 4:25am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/210 "2014-01-03T04:25:04Z")
> [@](#): > > Elder L. Whitney Clayton: > . . . > “Gender is an essential characteristic of individual premortal, mortal, and eternal identity and purpose." So Mormons actually believe that there are boy angles and girl angels in heaven? It’s been a long time since my parochial school catechism classes, but I’m pretty sure we were taught differently! ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [January 3, 2014, 10:10am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/211 "2014-01-03T10:10:57Z")
> [@TokyoBayer](#): > > The Mormon church has only recently starting saying “love the sinner” which still is absolutely outrageous. “Everything about you is an abomination in the eyes of the Lord, but we still love you! Wait, why are you mad at us? You gays are so unreasonable!” ---
**Author:** ![OttoDaFe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ottodafe/32/356_2.png) [@OttoDaFe](https://boards.straightdope.com/u/OttoDaFe)\ **Post date:** [January 3, 2014, 1:37pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/212 "2014-01-03T13:37:32Z")
> [@t-bonham@scc.net](#): > > > [@](#): > > > > Elder L. Whitney Clayton: > > . . . > > “Gender is an essential characteristic of individual premortal, mortal, and eternal identity and purpose." > > So Mormons actually believe that there are boy angles and girl angels in heaven? > > It’s been a long time since my parochial school catechism classes, but I’m pretty sure we were taught differently! Dunno about the angles in Heaven, but the boy angles running the LDS seem kinda obtuse. (I could have resisted, but I chose not to.) ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [January 3, 2014, 2:01pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/213 "2014-01-03T14:01:01Z")
> [@OttoDaFe](#): > > Dunno about the angles in Heaven, but the boy angles running the LDS seem kinda obtuse. > > (I could have resisted, but I chose not to.) On the other hand, some of those young Elders are really acute… ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [January 3, 2014, 2:12pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/214 "2014-01-03T14:12:42Z")
> [@t-bonham@scc.net](#): > > So Mormons actually believe that there are boy angles and girl angels in heaven? > > It’s been a long time since my parochial school catechism classes, but I’m pretty sure we were taught differently! Yup, I believe this is unique to Mormons who believe that they were created by Heavenly Father and Heavenly Mothers. (Mormon gods are polygamous, and the Mormon doctrine is that faithful Mormons will be polygamous in heaven. Which makes their claims that marriage is between a man and a woman only partially correct. It’s between a man and a woman and other women as well.) > [@Gyrate](#): > > “Everything about you is an abomination in the eyes of the Lord, but we still love you! Wait, why are you mad at us? You gays are so unreasonable!” One of the top leaders recently gave a talk in which he said : > [@Boyd K. Packer](#): > > In his speech on Oct. 3 to the General Convention of the Mormon Church in Salt Lake City, Packer’s most controversial statement on homosexuals was: > > ``` > "Some suppose that they were pre-set and cannot overcome what they feel are inborn tendencies toward the impure and unnatural. Not so! Why would our Heavenly Father do that to anyone? Remember he is our father." > > ``` They’re evil! This is from a previous talk > [@](#): > > There is a falsehood that some are born with an attraction to their own kind, with nothing they can do about it. They are just ‘that way’ and can only yield to those desires. That is a malicious and destructive lie. While it is a convincing idea to some, it is of the devil. No one is locked into that kind of life. From our premoral life we were directed into a physical body. There is no mismatching of bodies and spirits. Boys are to become men ‑‑ masculine, manly men ‑‑ ultimately to become husbands and fathers. No one is predestined to a perverted use of these powers. > Boyd K. Packer, 1976 General Conference, speech entitled To Young Men Only So, yes. They hate the gays. Lots of quotes out there. > [@](#): > > President Boyd K. Packer, in a recent conference address, while expressing love and offering compassion to those who struggle with homosexual attraction, declared that homosexual relations are “forbidden in the laws of God.” In further elaborating on these laws of God, he explains, “We did not make the laws; they were made in heaven `before the foundation of the world’. We are servants only.” (Conference Address, October 8, 2000) So these poor LDS folks. Carrying out God’s work is a tough job, but someone’s got to do it. It’s not that they hate gays, you see, it’s just that someone has to do it. And, just to let you know that they’re not kidding, homosexuality is right up there, next to murder. > [@](#): > > Next to the crime of murder comes the sin of sexual impurity as expressed in its many manifestations: adultery, fornication, homosexuality and related transgressions. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 3, 2014, 2:28pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/215 "2014-01-03T14:28:55Z")
> [@EverwonderWhy](#): > > IANAL, but is the State seriously contending it does NOT have support their rational for excluding a class of people from marriage? > [@jayjay](#): > > It’s my understanding, as a layman who has had this explained by Doper lawyers in other similar threads, that to prove a rational basis for a law, the state only has to prove that there WAS a rationale, not that such rationale was factually valid. Rational basis is trumped by strict scrutiny, however, and that’s what orientation seems to be crawling towards case by case. You’re close. Under strict or intermediate scrutiny, the state has the burden of proof regarding the legitimacy of the state interest in question, and the close tie between the interest and whatever enactment is being challenged. Basically, where suspect classifications or the exercise of fundamental rights are concerned, the courts say the state has to show its work. Under rational basis review, the _challenger_ has the burden of proving that the enactment is not “rationally related to a legitimate government objective.” You correctly note that the state can put forward just about any legitimate government objective regardless of whether it was one the legislature had in mind (hence, “defending traditional marriage” versus “I hates them fags”.) Rational basis is a very low bar.\* It’s unlikely that sexual orientation will become a classification subject to strict scrutiny anytime soon, though. Given the nature of SCOTUS, and the arguments generally put forward by SSM proponents (that anti-SSM laws are gender discrimination), it will probably end up in the intermediate category. That’s where gender classifications (and nonmarital child classifications) go. It could end up in the strict scrutiny category if they accept the “marriage is a fundamental right” argument versus the gender discrimination one. \*SCOTUS has implicitly applied a modified version of rational basis in past sexual orientation cases, beginning with _Romer v. Evans_, called “rational basis with teeth” or “bite”. Nobody except Kennedy is quite sure how that one works. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 3, 2014, 3:53pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/216 "2014-01-03T15:53:26Z")
> [@EverwonderWhy](#): > > Thanks, that makes sense. This is where I am confused: I thought strict scrutiny applies when denying a fundamental right? It is my understanding that Judge Shelby didn’t apply strict scrutiny to orientation (which I believe is what the plaintiffs asserted), but since marriage is a fundamental right - strict scrutiny applies. Ergo, doesn’t the state have some burden of proof? The problem is that, although the right to marry is considered “fundamental,” the term “marry” encompasses so many things and it’s not at all clear what the scope of that right is. The claim is that there is a “fundamental” right to governent recognition and endorsement of your personal relationships. I’m not sure how compelling you find that. The argument that the government provides this recognition and is depriving certain relationships of that recognition on the basis of either gender or sexual orientation (i.e., the “equal protection” argument) makes (to me) a great deal more sense. > [@YogSosoth](#): > > Utah may not want that to be the question, but its fairly clear to most people that it is one about discrimination and civil rights and the Constitution and not one about regulating bridge clubs. I think Utah’s being purposefully deceptive in their arguments because they know they can’t win on the merits. We’ve seen a lot of this from conservative circles in the past few years. They’ll try to pass it off as a religious rights issue, or a private business issue, or a 1st Amendment issue, but its none of those things. Gay marriage is about civil rights. Everything you can say about this issue can be said about racial minority issues and we’ve pretty much settled that It is curious that you call Utah (and conservatives in general) “purposefully deceptive” in response to my criticism of the _pro_ same-sex marriage argument that the state has no valid interest in regulating marriages because it’s just like regulating boy scouts and bridge clubs. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [January 3, 2014, 4:25pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/217 "2014-01-03T16:25:42Z")
> [@Falchion](#): > > It is curious that you call Utah (and conservatives in general) “purposefully deceptive” in response to my criticism of the _pro_ same-sex marriage argument that the state has no valid interest in regulating marriages because it’s just like regulating boy scouts and bridge clubs. I assumed you misspoke because usually it is the anti same-sex marriage side using those arguments. Conservatives are the ones I generally hear crying about how the government can’t/shouldn’t regulate things whether the government actually can or not. They’re just against regulation. But they turn around and expect the government to uphold a version of morality that fits with their worldview For the record, the state has a valid interest in all those things. Its just that sometimes, those valid interests are trumped by other, even more valid interests such as civil rights and the Constitution. Those trump any marriage regulating claims Utah has. Civil rights also trump any interest the Boy Scouts have. Not sure about private bridge clubs though ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 3, 2014, 4:28pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/218 "2014-01-03T16:28:39Z")
Why do civil rights trump the Boy Scouts’ interest? They’re not part of the state. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 3, 2014, 4:35pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/219 "2014-01-03T16:35:48Z")
> [@YogSosoth](#): > > I assumed you misspoke because usually it is the anti same-sex marriage side using those arguments. Conservatives are the ones I generally hear crying about how the government can’t/shouldn’t regulate things whether the government actually can or not. They’re just against regulation. But they turn around and expect the government to uphold a version of morality that fits with their worldview I did not mispeak. I was responding directly to this post: > [@Snowboarder\_Bo](#): > > Me either, and we never will. If such an argument could be made, it could be made for everything. Boy Scouts taking in gays? The state has an interest in who is a Boy Scout, so no way. Your bridge club wants to start playing Euchre as well? The state has an interest in what card games are played at clubs, so no way. > > The state may very well have an interest, but that in no way makes it a valid one. As I read it (and certainly as I criticized it), this post is rejecting the notion that the state has a “valid” interest in regulating marriage. I may have read it wrong and unfairly criticized **Snowboarder Bro**. If that’s the case, I apologize to him. But my response was a result of the perceived claim (and I’ve heard the argument elsewhere) that the government has no business regulating who gets married. Other than from libertarians who would do away with civil marriage entirely, I’ve never heard a conservative argue that government can’t regulate civil marriage (and certainly Utah isn’t arguing that here), so, again, I don’t know who you’re accusing of being “purposefully deceptive.” ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [January 3, 2014, 5:22pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/220 "2014-01-03T17:22:55Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Why do civil rights trump the Boy Scouts’ interest? They’re not part of the state. In this case, I was referring to LGBT people, who I believe should be a federally protected class. I don’t think the Boy Scouts should have the right to discriminate against a protected class as in many places they get local government support and usage of public venues > [@Falchion](#): > > As I read it (and certainly as I criticized it), this post is rejecting the notion that the state has a “valid” interest in regulating marriage. I may have read it wrong and unfairly criticized **Snowboarder Bro**. If that’s the case, I apologize to him. But my response was a result of the perceived claim (and I’ve heard the argument elsewhere) that the government has no business regulating who gets married. Other than from libertarians who would do away with civil marriage entirely, I’ve never heard a conservative argue that government can’t regulate civil marriage (and certainly Utah isn’t arguing that here), so, again, I don’t know who you’re accusing of being “purposefully deceptive.” Then its probably not you, sorry. The ones I accuse of being purposefully deceptive are those conservatives that claim that the government has no right to regulate what a private organization does, then turns around and tries to regulate private marriages. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 3, 2014, 5:28pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/221 "2014-01-03T17:28:09Z")
> [@YogSosoth](#): > > Then its probably not you, sorry. > > The ones I accuse of being purposefully deceptive are those conservatives that claim that the government has no right to regulate what a private organization does, then turns around and tries to regulate private marriages. Of course the government has no right to regulate a private marriage (although, I’m not sure what that is). The government, naturally, does have the right to regulate civil marriage (and the questions of property, custody, inheritance, etc, that come from it). That being said, very few of these things are nearly as a black and white as “public” versus “private” suggest. [Previous page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=10) [Next page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=12)