# 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:** 14
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [January 10, 2014, 1:13am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/262 "2014-01-10T01:13:51Z")
> [@outlierrn](#): > > Really? I don’t find that argument compelling at all. Men and women are equally forbidden from the marriage of their choice. Would you accept lesbain only SSM? If so why? I wasn’t trying to make a one-sided argument. Obviously, this would work both ways, and no, I wouldn’t accept lesbian-only SSM. I see your point: it’s not discrimination because each sex has equal restrictions in the selection of marriage partners. And, of course, the state does have a vested interest in restricting the pool of partners, because of incest. I withdraw my argument. ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [January 10, 2014, 5:33pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/263 "2014-01-10T17:33:10Z")
> [@Falchion](#): > > So, apparently, I’m wrong and [the marriages entered into before the stay are “on hold”](http://www.sltrib.com/sltrib/news/57367991-78/court-marriages-state-stay.html.csp) (whatever that means). Nevertheless, those marriages will be recognized at the Federal level. [http://politicalticker.blogs.cnn.com/2014/01/10/breaking-doj-will-recognize-same-sex-marriages-that-were-performed-in-utah/?hpt=hp\_t2](http://politicalticker.blogs.cnn.com/2014/01/10/breaking-doj-will-recognize-same-sex-marriages-that-were-performed-in-utah/?hpt=hp_t2) ---
**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 10, 2014, 5:39pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/264 "2014-01-10T17:39:17Z")
> [@outlierrn](#): > > Really? I don’t find that argument compelling at all. Men and women are equally forbidden from the marriage of their choice. Would you accept lesbain only SSM? If so why? Black people and white people were equally forbidden from marrying each other under the Virginia statute that was challenged in _Loving_. In fact, that was the government’s primary defense. That didn’t mean it wasn’t an equal protection violation. ---
**Author:** ![Munch](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/munch/32/5281_2.png) [@Munch](https://boards.straightdope.com/u/Munch)\ **Post date:** [January 10, 2014, 7:45pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/265 "2014-01-10T19:45:01Z")
> [@gotpasswords](#): > > Now, I get to do the opposite. Prepare two pro forma Fed returns to have the AGI, etc. to plug into the individual State returns, and prepare a joint Fed return. Oh, my husband works in a different state, so I have to prepare six returns and file four. Assuming everything aside from your marital status isn’t that complicated (i.e. your income, deductions, etc. are all straight-forward), have any of the tax software programs accounted for SSM, and the various filings that might need to take place as a result? ---
**Author:** ![SpoilerVirgin](https://avatars.discourse-cdn.com/v4/letter/s/4491bb/32.png) [@SpoilerVirgin](https://boards.straightdope.com/u/SpoilerVirgin)\ **Post date:** [January 10, 2014, 8:29pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/266 "2014-01-10T20:29:28Z")
> [@Munch](#): > > Assuming everything aside from your marital status isn’t that complicated (i.e. your income, deductions, etc. are all straight-forward), have any of the tax software programs accounted for SSM, and the various filings that might need to take place as a result? [TurboTax](https://turbotax.intuit.com/tax-tools/tax-tips/Family/State-Tax-Filing-for-Same-Sex-Couples/INF12073.html) has a page discussing the issue. Basically they say that you can use their software to test the various scenarios, and to create “dummy” returns that may be necessary in certain cases. ---
**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 11, 2014, 1:32pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/267 "2014-01-11T13:32:15Z")
> [@SpoilerVirgin](#): > > [TurboTax](https://turbotax.intuit.com/tax-tools/tax-tips/Family/State-Tax-Filing-for-Same-Sex-Couples/INF12073.html) has a page discussing the issue. Basically they say that you can use their software to test the various scenarios, and to create “dummy” returns that may be necessary in certain cases. Which will come in handy now that the [federal government will recognize](http://www.sltrib.com/sltrib/world/57378130-68/state-marriage-utah-federal.html.csp)the marriages which happened during the December Thaw. > [@](#): > > The federal government will recognize same-sex marriages in Utah that took place before the U.S. Supreme Court granted the state’s request for a stay. > > U.S. Attorney General Eric Holder announced the decision a day after the Human Rights Campaign (HRC) urged him to ensure that those couples would be eligible for federal benefits. > > “I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” Holder said in a statement. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 11, 2014, 3:47pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/268 "2014-01-11T15:47:19Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Black people and white people were equally forbidden from marrying each other under the Virginia statute that was challenged in _Loving_. In fact, that was the government’s primary defense. That didn’t mean it wasn’t an equal protection violation. But this is what I am talking about by question begging. Are the two scenarios the same? They appear to be the same, but looking at the facts shows that they are not. In Loving, everyone knew that this “it denies whites as well as blacks the freedom to intermarry” argument was horseshit. Virginia had a racial purity/eugenics law from the 1920s which showed that the purpose of the law was to keep the “purity” of the white race. It was abundantly clear that that the law was simple hostile to minority races by preventing them from spreading their seed into the “pure” white race. Second, it was a distinction based upon race. This is covered under strict scrutiny which is “strict in theory but fatal in fact.” The entire purpose of the 14th amendment was to eliminate racial distinctions and one would be hard pressed to find any legitimate racial classification in law. SSM as applied to gender (biological gender) is wholly different from the Loving analysis. The law does not place a badge of dishonor on men or upon women. To the extent that there is animus in the law it only applies to those men or women who would like to marry someone of their own gender, which is just another way of saying “sexual orientation.” It is not, like the law in Loving, saying that we don’t want to “defile the male gender” by having the inferior female genes mixing (or vice versa). Nor is a gender distinction “fatal in fact.” The intermediate scrutiny standard was developed to allow for the biological differences between the sexes. Mens and Women’s restrooms in public places aren’t decried as Jim Crow type segregation for this very reason: a realization that biological differences between the sexes would require separate restroom facilities is perfectly acceptable. Therefore, to the extent that a state would want marriage to be funneled into those relationships that are facially capable of procreation, biological differences between genders are the sine qua non of procreation. So, in short, I contend that while the Loving analysis is tempting to apply to gender and SSM, a short summary of the facts of each show that they are wholly unrelated. ---
**Author:** ![outlierrn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/outlierrn/32/3005_2.png) [@outlierrn](https://boards.straightdope.com/u/outlierrn)\ **Post date:** [January 11, 2014, 5:46pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/269 "2014-01-11T17:46:23Z")
> [@jtgain](#): > > Nor is a gender distinction “fatal in fact.” The intermediate scrutiny standard was developed to allow for the biological differences between the sexes. Mens and Women’s restrooms in public places aren’t decried as Jim Crow type segregation for this very reason: a realization that biological differences between the sexes would require separate restroom facilities is perfectly acceptable. Not really, separate facilites are a social construct, there’s no biological need for them. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 11, 2014, 8:37pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/270 "2014-01-11T20:37:05Z")
> [@outlierrn](#): > > Not really, separate facilites are a social construct, there’s no biological need for them. I think it is both. Like how at stadiums there are giant urinal troughs in the men’s room. I suppose you could make the setup gender neutral absent social constraints by having two unisex bathrooms with smaller urinal troughs in each room, but it is more efficient to steer the men into one of the rooms with a giant urinal trough. This setup is based on biology. ---
**Author:** ![Dr.Drake](https://avatars.discourse-cdn.com/v4/letter/d/ad7895/32.png) [@Dr.Drake](https://boards.straightdope.com/u/Dr.Drake)\ **Post date:** [January 11, 2014, 9:08pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/271 "2014-01-11T21:08:23Z")
> [@jtgain](#): > > This setup is based on biology. Filtered through culture. There is no need for a urinal trough; does your house even have a urinal, trough or otherwise? The facilities that women use could be used equally by men. The idea that we need privacy to poo, or that we shouldn’t see someone’s penis while they are urinating unless we also have a penis (and even then, don’t look), that’s all cultural. I’m not saying it’s unreasonable or anything, but there’s nothing in biology that makes separate restrooms necessary or even more efficient. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 11, 2014, 9:57pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/272 "2014-01-11T21:57:11Z")
> [@Dr.Drake](#): > > Filtered through culture. There is no need for a urinal trough; does your house even have a urinal, trough or otherwise? The facilities that women use could be used equally by men. > > The idea that we need privacy to poo, or that we shouldn’t see someone’s penis while they are urinating unless we also have a penis (and even then, don’t look), that’s all cultural. I’m not saying it’s unreasonable or anything, but there’s nothing in biology that makes separate restrooms necessary or even more efficient. Only on the SDMB do we get into such topics. 🙂 I don’t want to hijack the thread, but just some brief points: 1. No my house doesn’t have a urinal because home restrooms serve far fewer people than public restrooms, and are not designed for maximum traffic flow. 2. A large percentage of the public is male and only needs to urinate. 3. Those members of the public covered under point #2 require less space and less exotic toiletry appliances than the rest of the public. 4. It is more efficient (cultural norms aside) to funnel point #2 members of the public into a separate, dedicated area containing these lesser spaces and minimal toiletry appliances. 5. Instead of having an attendant passing out a questionnaire asking each patron whether they are a) male and b) only need to urinate, and assigning restrooms based upon the questionnaire, a more efficient method would be to simply segregate by gender. Segregation of restrooms by gender is more efficient. QED. 🙂 ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 11, 2014, 10:10pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/273 "2014-01-11T22:10:06Z")
> [@TokyoBayer](#): > > Which will come in handy now that the [federal government will recognize](http://www.sltrib.com/sltrib/world/57378130-68/state-marriage-utah-federal.html.csp)the marriages which happened during the December Thaw. So back to the topic at hand. Under what authority do the feds recognize these marriages? Windsor stood for the proposition that the feds must recognize marriage according to state law. These marriages are invalid under state law, yet the federal government’s position is that they are valid. Under who’s authority and under what authority are these couples legally married? Not Utah law. Not under Judge Shelby’s decision because that was stayed pending appeal. There is no federal marriage law. If I marry my sister in Utah or any other state, will the feds recognize it? Will they consider it? What process is used? I’m at a loss to see how these marriages are valid. (Again, under current law, not what “should” be done.) ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [January 11, 2014, 10:38pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/274 "2014-01-11T22:38:39Z")
> [@jtgain](#): > > If I marry my sister in Utah or any other state, will the feds recognize it? Will they consider it? Do you have a sister? Are you in _any_ state? If so, I see a test case looming. ---
**Author:** ![outlierrn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/outlierrn/32/3005_2.png) [@outlierrn](https://boards.straightdope.com/u/outlierrn)\ **Post date:** [January 11, 2014, 10:52pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/275 "2014-01-11T22:52:50Z")
> [@jtgain](#): > > Segregation of restrooms by gender is more efficient. QED. 🙂 Not at all, segregated bathrooms require more square footage and more expense to construct for the same number of receptacles. ---
**Author:** ![SpoilerVirgin](https://avatars.discourse-cdn.com/v4/letter/s/4491bb/32.png) [@SpoilerVirgin](https://boards.straightdope.com/u/SpoilerVirgin)\ **Post date:** [January 13, 2014, 2:47am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/276 "2014-01-13T02:47:05Z")
My college dorm floor, which by random chance had far more women than men, voted to have one women’s restroom and one coed restroom. Under the particular circumstances, that was the most efficient arrangement. No biology was involved. After spending a year sharing a restroom (including individual stall shower facilities) with men (the coed restroom was closer to my dorm room, and also less crowded), I find it very hard to care about whether restrooms are separated by gender. Of course I find it even harder to care about preventing people from marrying based on their gender. ---
**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 13, 2014, 2:44pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/277 "2014-01-13T14:44:14Z")
> [@jtgain](#): > > But this is what I am talking about by question begging. Are the two scenarios the same? They appear to be the same, but looking at the facts shows that they are not. > > In Loving, everyone knew that this “it denies whites as well as blacks the freedom to intermarry” argument was horseshit. Virginia had a racial purity/eugenics law from the 1920s which showed that the purpose of the law was to keep the “purity” of the white race. It was abundantly clear that that the law was simple hostile to minority races by preventing them from spreading their seed into the “pure” white race. > > Second, it was a distinction based upon race. This is covered under strict scrutiny which is “strict in theory but fatal in fact.” The entire purpose of the 14th amendment was to eliminate racial distinctions and one would be hard pressed to find any legitimate racial classification in law. The underlying purpose of the enactment was significant at the time of _Loving_. Today, at least for elevated scrutiny purposes, it’s not. Remember, equal protection/fundamental rights analysis doesn’t care about the _actual_ legislative purpose; it cares about whatever plausible legislative purpose the government’s attorneys throw out. It’s also worth noting that Loving invalidated _all_ restrictions on miscegenation, not only those which limited white people from intermarrying. Anyway, the idea that strict scrutiny is “fatal in fact” is a myth. That was true at the time of Korematsu and it’s true today: > [@](#): > > Strict scrutiny is not, generally speaking, fatal in fact, and there are clear patterns in the cases that show how context influences judicial review. Of the five rights protected by strict scrutiny, courts clearly apply a much more lenient version of strict scrutiny in religious liberty cases, in particular those involving claims for exemptions from generally applicable laws. In addition to doctrinal differences, the courts are acutely attuned to the identity of the governmental actor behind a law. Courts are far more likely to uphold federal laws than state and, especially, local laws. This federalism effect is particularly profound in suspect class discrimination and free speech cases–the latter an area of law where the prevailing scholarly literature ignores federalism as a factor in judicial review. Courts are also more likely to uphold judicial orders that burden constitutional rights than legislation or executive action, and tend to uphold prison policies but not those of educational institutions. Strict scrutiny review is institutionally sensitive. > > Adam Winkler, _Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts_, 59 Vand. L. Rev. 793, 870 (2006) The full article is fascinating; I’ll email you a copy if you like (assuming you no longer have free WL access.) It found that about 25% of strict scrutiny challenges fail. I think you’ll be hard pressed to find anyone who thinks the argument that gays can marry people of the opposite gender isn’t horseshit. Only the most hardcore “orientation is a choice” people would make that claim. It’s true that intermediate scrutiny is a lower bar than strict scrutiny, but it’s still rather unlikely that any state can put forward a basis that will meet that standard. > [@jtgain](#): > > So back to the topic at hand. Under what authority do the feds recognize these marriages? Windsor stood for the proposition that the feds must recognize marriage according to state law. > > These marriages are invalid under state law, yet the federal government’s position is that they are valid. Under who’s authority and under what authority are these couples legally married? Not Utah law. Not under Judge Shelby’s decision because that was stayed pending appeal. There is no federal marriage law. They’re not invalid under state law. They’re “on hold” under state law. Anyway, the important thing is that _they were valid at the time they were contracted_, which is generally the test for the validity of an extrajurisdictional marriage. The stay prevents _future_ marriages. ---
**Author:** ![hajario](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hajario/32/171_2.png) [@hajario](https://boards.straightdope.com/u/hajario)\ **Post date:** [January 14, 2014, 11:43pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/278 "2014-01-14T23:43:28Z")
A Federal judge in Oklahoma (also in the 10th) just declared that Oklahoma’s law against SSM is unconstitutional. He stayed his ruling. On my phone so can’t supply a link. ---
**Author:** ![Antinor01](https://avatars.discourse-cdn.com/v4/letter/a/ecae2f/32.png) [@Antinor01](https://boards.straightdope.com/u/Antinor01)\ **Post date:** [January 14, 2014, 11:51pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/279 "2014-01-14T23:51:25Z")
> [@hajario](#): > > A Federal judge in Oklahoma (also in the 10th) just declared that Oklahoma’s law against SSM is unconstitutional. He stayed his ruling. > > On my phone so can’t supply a link. > **[Oklahoma’s Ban on Gay Marriage Is Unconstitutional, Judge Rules (Published 2014)](https://www.nytimes.com/2014/01/15/us/federal-judge-rejects-oklahomas-gay-marriage-ban.html?_r=0)** > > The decision, the latest in a string of legal victories for gay rights, will not take effect immediately, and an appeal is almost certain. ---
**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 16, 2014, 4:31pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/280 "2014-01-16T16:31:29Z")
> [@jtgain](#): > > I’m not sure what you mean that the equal protection argument makes more sense. It is the very argument relating to the tiers of scrutiny discussed in the thread right above yours. > > The 14th amendment has two components (basically): > > The first says that no person shall be denied equal protection of the laws. Obviously that cannot be an absolute statement because every single law proscribing something clearly levies a harder burden on those individuals who would like to commit the proscribed act than those who don’t. I cannot say that drunk driving laws violate my equal protection because I am an alcoholic. > > The court addresses this by creating the three tiers of scrutiny (strict, intermediate, and rational basis) discussed by **RNATB** to determine if a law violates a person’s equal protection under the laws. Unless a person is a member of a class subject to strict or intermediate scrutiny, then all a state must do is show a rational basis for the law. As Judge Kern shows in his ruling in Oklahoma, (his ruling is [linked here](http://www.scotusblog.com/2014/01/oklahoma-gay-marriage-ban-struck-down/)) the state does not have a rational basis for the law, and the law in Oklahoma, as well as the constitutional amendment in Utah, was passed to discriminate against one group of people without providing a rational reason. The procreation argument fails. No state has a requirement that everyone who wants to get married be able and willing to have children. You can’t prohibit one group (gays) who can’t naturally procreate without prohibiting others. SCOTUS thinks that’s a big no no. Kern goes though a number of the arguments which attempt to show a rational basis, and doesn’t find any meaningful. ---
**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 16, 2014, 4:47pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/281 "2014-01-16T16:47:51Z")
That’s not really how rational basis review works. [Previous page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=13) [Next page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=15)