# 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:** 16
**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 24, 2014, 9:52am UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/302 "2014-01-24T09:52:14Z")
> [@TokyoBayer](#): > > As I said earlier in the thread, I think we’re at a tipping point, and the end of gay marriage bans will be in sight. Andrew Sullivan agrees, and brings numbers: [And Suddenly, The Door Just Gives Way](http://dish.andrewsullivan.com/2014/01/23/and-suddenly-the-door-just-gives-way/) > [@](#): > > The poll shows support in non-marriage states at 51%, with strongest numbers in the Central and Western parts of the country {59% and 53% of voters respectively). Even in the South, voters are split evenly on the freedom to marry, 46% in support and 46% opposed. In addition, the poll finds that regardless of personal views, 56% of voters believe that marriage will be legal in their state in a couple of years (including 49% among marriage opponents.) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 24, 2014, 1:26pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/303 "2014-01-24T13:26:45Z")
That matches the Canadian experience ten years ago. There was strong opposition to same-sex marriage until it actually started happening. Then, as it became legal and there was no apocalypse, it became a non-issue. ---
**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 24, 2014, 2:44pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/304 "2014-01-24T14:44:56Z")
> [@Falchion](#): > > That’s not my point at all nor even a fair interpretation of it. > > My point is that the “suspect class” appellation works best for groups that are obviously identifiable based on discerete (and apparent) characteristics (that individual members of these groups may not be readily identifiable doesn’t change that) and that the concern is that the groups are entirely excluded from the political process. My other point is that the prejudicial treatment of homosexuals is tied, in these contexts at least, to the “discrete characteristics” that you think makes them the exemplar of “discrete and insular.” It’s the difference between “no synagogues in this town” and “jews can’t vote.” (Race is a poor example becuase I’m not sure of an equivalent set of “black things” that “black people” want to do; but they may exist). What makes (some) religious, racial, and national minorities “disrete and insular” is that they are readily subjected to discrimination in areas unrelated to the characteristics of the class. As are homosexuals. It’s certainly true that in most instances there is no way to tell a gay person from a non-gay person. That doesn’t mean they aren’t “discrete and insular”, though; an employer is almost certainly going to know an employee’s orientation based on applications for partner benefits and the like. A landlord is probably going to put two and two together if two women show up asking to rent a studio. And so on. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [January 24, 2014, 6:07pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/305 "2014-01-24T18:07:32Z")
Virginia’s certainly done a complete 180 on this, from a sex-obsessed conservative AG who wanted to criminalize oral sex to a Democratic AG who won’t fight to uphold the ban on gay marriage in his state. I read an article that its up to the AG to determine the Constitutionality of the laws in his state and Mark Herring has used that standard to justify not defending the state ban on gay marriage. Just curious, but how much leeway does he get? Can he decide to not prosecute other crimes? I’d support him regardless because the Cooch seemed to have run the AG’s office as his private church with its own morals and rules so I’m glad a Democrat is working the system in the other direction. Ideally, I would want the AG of any state to defend the laws of his state but I’m no Rand Paul, I’m perfectly fine with people breaking the law if its a bad law, and yes, good people can sometimes determine what’s a bad law and break it morally. Since I see gay rights as the civil rights fight of our era, if it takes breaking the law to defend it, then I’m all for it. Those who give no leeway to the letter of the law can completely miss the spirit of the law ---
**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 24, 2014, 6:09pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/306 "2014-01-24T18:09:15Z")
> [@YogSosoth](#): > > I read an article that its up to the AG to determine the Constitutionality of the laws in his state and Mark Herring has used that standard to justify not defending the state ban on gay marriage. Just curious, but how much leeway does he get? However much leeway the author of the article wants to give him, since nobody really knows if such authority exists. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 24, 2014, 6:13pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/307 "2014-01-24T18:13:38Z")
> [@Really\_Not\_All\_That\_Bright](#): > > As are homosexuals. It’s certainly true that in most instances there is no way to tell a gay person from a non-gay person. That doesn’t mean they aren’t “discrete and insular”, though; an employer is almost certainly going to know an employee’s orientation based on applications for partner benefits and the like. A landlord is probably going to put two and two together if two women show up asking to rent a studio. And so on. Well, both of your examples are private actors, so beside the point (we can have non discrimination laws that protect things that would not be subject to strict scrutiny as a constitutional principle). I’m not sure I’m able to articulate the distinction I see very well (so maybe it’s not real). But it seems to me that the concern of Carolene is an outright exclusion from the political process that homosexuals simply have not suffered (as evidenced by their success in the political process). And that one factor is the way the discrimination manifests itself. > [@YogSosoth](#): > > I read an article that its up to the AG to determine the Constitutionality of the laws in his state and Mark Herring has used that standard to justify not defending the state ban on gay marriage. Just curious, but how much leeway does he get? Can he decide to not prosecute other crimes? Do you have a link to this article? I would like read it. I have yet to see any substantiation for that claim other than ipse dixit and tu quoque. ---
**Author:** ![OneCentStamp](https://avatars.discourse-cdn.com/v4/letter/o/13edae/32.png) [@OneCentStamp](https://boards.straightdope.com/u/OneCentStamp)\ **Post date:** [January 24, 2014, 6:17pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/308 "2014-01-24T18:17:21Z")
> [@YogSosoth](#): > > I’d support him regardless because the **Cooch** seemed to have run the AG’s office as his private church with its own morals and rules so I’m glad a Democrat is working the system in the other direction. Best name ever for a sex-obsessed politician. ---
**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 24, 2014, 6:22pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/309 "2014-01-24T18:22:15Z")
> [@Falchion](#): > > …it seems to me that the concern of Carolene is an outright exclusion from the political process that homosexuals simply have not suffered (as evidenced by their success in the political process). And that one factor is the way the discrimination manifests itself. What success? Only two states legalized same-sex marriage either by popular referendum or act of the legislature, IIRC (though some legislatures have passed bills that essentially implemented existing judicial precedent.) We’ve had one gay governor, who had to resign when he came out; four representatives were “out” when elected; one senator; and about a dozen state legislators. ETA: The only way your distinction makes sense is if you mean gays have not been excluded from voting. That’s true, but gays are also much more of a “minority” than blacks in the sense that there is nowhere that they are a majority. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 24, 2014, 6:28pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/310 "2014-01-24T18:28:05Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What success? Only two states legalized same-sex marriage either by popular referendum or act of the legislature, IIRC (though some legislatures have passed bills that essentially implemented existing judicial precedent.) > > We’ve had one gay governor, who had to resign when he came out; four representatives were “out” when elected; one senator; and about a dozen state legislators. I don’t mean success as politicians (although McGreevey had to resign becuase he put his lover on the payroll, not for being gay). And access to the political process doesn’t mean winning. But look at the trend on opinion on gay marriage over the years; look at the speed at which members of one political party are required to “evolve” to maintain their political potential. I don’t look at that and think: “these people need judicial intervention becuase they can’t advocate for their political positions in the conventional manner.” ---
**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 24, 2014, 6:37pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/311 "2014-01-24T18:37:54Z")
They need judicial intervention _because_ their civil rights are a political position that they have to advocate for. Anyway, that’s one political party. The other one is [still](http://en.wikipedia.org/wiki/North_Carolina_Amendment_1) getting legislation and state constitutional amendments passed restricting their rights. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 24, 2014, 6:53pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/312 "2014-01-24T18:53:19Z")
> [@Really\_Not\_All\_That\_Bright](#): > > They need judicial intervention _because_ their civil rights are a political position that they have to advocate for. Anyway, that’s one political party. The other one is [still](http://en.wikipedia.org/wiki/North_Carolina_Amendment_1) getting legislation and state constitutional amendments passed restricting their rights. That argument only works if the policies they “have to advocate for” are of some unique importance. The way it’s supposed to work is that a group turns to the political process for what they want. The fact that they’re doing so (and wining or losing) is not evidence of being excluded from the political process and that judicial intervention is necessary. But, I guess, that all hinges on the fact that I’m not convinced that having the government reognize and validate your personal relationships is as fundamental a right as you do. And, that’s a whole different debate that is probably a waste of time. Because, if this was about voting or criminal prosecutions or something like that, I would be more inclined to agree with you (but even then, I don’t know; people who advocate for things that are crimes not to be crimes don’t need judicial intervention just becuase they don’t win). ---
**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 24, 2014, 7:12pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/313 "2014-01-24T19:12:15Z")
I am firmly in the “government should get out of the marriage business” camp. However, to the extend that much of our law is based on the institution of marriage, it is a fundamental right and should be equally available to The Gays (is my take). ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [January 24, 2014, 9:28pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/314 "2014-01-24T21:28:16Z")
> [@Falchion](#): > > Do you have a link to this article? I would like read it. I have yet to see any substantiation for that claim other than ipse dixit and tu quoque. Unfortunately I don’t. I’ve read several news stories since the news broke yesterday. Might have been on [Slate.com](http://Slate.com) or Yahoo, or one of the many links they provided. I might be getting the exact wording wrong too but that was my impression, sorry ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [January 24, 2014, 9:37pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/315 "2014-01-24T21:37:08Z")
> [@YogSosoth](#): > > Unfortunately I don’t. I’ve read several news stories since the news broke yesterday. Might have been on [Slate.com](http://Slate.com) or Yahoo, or one of the many links they provided. I might be getting the exact wording wrong too but that was my impression, sorry In reality, the AG’s veto power comes from the age-old legal principle of “Whaddya gonna do? Impeach me?” It happens in practice, it’s fairly rare. AGs claim authority from the practice of earlier AGs. And it tends to happen either in situations that no one cares about so no one knows about it (for example, the first I was aware that the previous AG had declined to defend a law was when the current one made his announcement) or (like here) they do it in situations that are sufficiently controversial that a substantial percentage of the political public is going to support it and not care at all whether he has the authority. It’s the same basic principle that allows executives to engage in all sorts of illegal exercises of power. ---
**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 24, 2014, 9:43pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/316 "2014-01-24T21:43:00Z")
> [@Falchion](#): > > …for example, the first I was aware that the previous AG had declined to defend a law was when the current one made his announcement… You’re welcome. 😉 ---
**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 31, 2014, 2:36pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/317 "2014-01-31T14:36:37Z")
From the [Times](http://takingnote.blogs.nytimes.com/2014/01/27/nevadas-argument-against-same-sex-marriage-no-longer-tenable/?src=recg) > [@](#): > > On Jan. 21, Nevada’s Attorney General, Catherine Cortez Masto, filed a brief strongly defending the state’s ban on same-sex marriage, which is being challenged in federal court by a group of same-sex couples. > > Three days later, she did an about-face. > > The brief’s arguments, she said in a statement, were “likely no longer tenable” in light of a ruling issued by the federal appeals court in San Francisco on the same day the brief had been filed. > > When it comes to big-ticket social issues like marriage equality, the Supreme Court’s rulings usually get the most attention. The attorney general’s rapid reversal shows how important lower court decisions can be. > > The opinion by the U.S. Court of Appeals for the Ninth Circuit that led Ms. Masto to reassess her office’s position was not about marriage at all — rather it held that prospective jurors may not be excluded from a jury because of their sexual orientation. (For background, read Monday’s editorial about this ruling.) > > But in order for the three-judge panel to arrive at that holding, which it did unanimously, it first established that distinctions based on sexual orientation should be subject to a higher level of scrutiny than the traditional “rational basis” review, under which a state action will be upheld so long as there is some conceivable rationale for it. > > That’s why the Ninth Circuit’s ruling was such a big deal: Ms. Mastro’s original argument had relied heavily on the understanding that rational-basis review applied in this case. But because the Ninth Circuit opinion raised the level of scrutiny for all distinctions drawn on the basis of sexual orientation, whether the issue is jury selection or marriage, Ms. Masto recognized that her defense of the ban would not pass muster. Reading through the Ninth Court decision, it takes it step-by-step to show how they read _Windsor_ and concluded that SCOTUS treated gays and lesbians as a class with heightened level of scrutiny, and why it was not a rational basis analysis. A number of blogs have pointed out the significance of this. This argument will certainly be copied in other cases and appeals. One blog from a legal adviser to one of the gay and lesbian groups pointed out the number of cases working they way through the different states. While SCOTUS was undoubtedly hoping for some more time before having to decided on the states’ right to ban SSM, it does not look like they will have to look at it soon. As the Times said in [an editorial](http://www.nytimes.com/2014/01/27/opinion/the-expanding-power-of-us-v-windsor.html), > [@](#): > > While the Supreme Court has so far declined to decide whether there is a constitutional right to same-sex marriage, it is increasingly clear that because of its holding in Windsor, the court will be confronted with that issue sooner rather than later. Seventeen states now permit same-sex marriage — not counting Utah and Oklahoma, where officials are challenging the recent judicial rulings — and that number is likely to grow in the next few years. The court has laid the groundwork for the recognition of equal rights for all. Now it must follow through on its own reasoning. ---
**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 31, 2014, 3:18pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/318 "2014-01-31T15:18:49Z")
Might as well add this here: A [new poll](http://thetimes-tribune.com/news/state-voters-ok-with-ending-discrimination-against-gay-and-transgender-people-1.1625646)shows that a sizable majority of Pennsylvanians are in favor of SSM: > [@](#): > > Voters continue to favor allowing same sex couples to marry legally with almost three in five (56 percent) now saying they strongly or somewhat favor the idea and almost two in five (39 percent) saying they oppose it. The percentage in favor is up 2 points from a poll last May. …and a HUGE majority favor outlawing discrimination against homosexuals and transgender people: > [@](#): > > Almost three quarters of voters (72 percent) said they favor a law outlawing such discrimination with almost three in five (57 percent) saying they strongly favor it. > > Bills outlawing the discrimination languish in the Legislature, but the issue got a boost last month when Gov. Tom Corbett said he would sign the bill if it passes. > [@](#): > > “The next issue before the Legislature will not be the legalization of gay marriage, it will be making it illegal to discriminate in employment or housing based on a person’s sexual orientation or gender identity. … Corbett says he’s even for that. That’s the next fight.” > > \*\*Almost two-thirds (65 percent) of Republicans \*\*favor passing that law, Dr. Madonna said. Given that this is the same state that elected [this guy](http://thetimes-tribune.com/news/state-voters-ok-with-ending-discrimination-against-gay-and-transgender-people-1.1625646), that’s a pretty solid shift in the right (or, rather, left) direction. I suspect a Pennsylvania SSM bill or referendum will come by or in 2016 if the Supremes haven’t already made it the law of the land. ---
**Author:** ![Antinor01](https://avatars.discourse-cdn.com/v4/letter/a/ecae2f/32.png) [@Antinor01](https://boards.straightdope.com/u/Antinor01)\ **Post date:** [January 31, 2014, 3:32pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/319 "2014-01-31T15:32:57Z")
Wow, that is quite the ruling. The one thing that bugged me was a couple typos. 4 times it has bases instead of basis. ---
**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 31, 2014, 3:44pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/320 "2014-01-31T15:44:40Z")
_Bases_ is the plural form of basis and is used as such in the 9th Circuit’s opinion. ---
**Author:** ![Antinor01](https://avatars.discourse-cdn.com/v4/letter/a/ecae2f/32.png) [@Antinor01](https://boards.straightdope.com/u/Antinor01)\ **Post date:** [January 31, 2014, 4:01pm UTC](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863/321 "2014-01-31T16:01:32Z")
I didn’t know that. Strange how I never came across that before with as much reading as I do. [Previous page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=15) [Next page](https://boards.straightdope.com/t/utah-judge-strikes-down-same-sex-marriage-ban/676863.md?page=17)