Sorry, I meant marriages which occurred prior to the passage of Prop 8 - but on reflection that wouldn’t have applied to them anyway.
I don’t know exactly what “official” Roman Catholic doctrine is on this, if there is one, but the good sisters used to tell us we would get back our original bodies in the prime of life (assumed to be 33 years old, Jesus’s supposed age when he died), regardless of our age or physical condition when we died. So yes, we would continue to be male and female in heaven. Of course, this wouldn’t matter very much since the only thing we would be doing in heaven was basking in the presence of The Lord.
But I have found later that the theology of Sisters Honoria and Ligouria was sometimes at variance with that of official church doctrine (notably on the consequences of chewing gum in class).
So, apparently, I’m wrong and the marriages entered into before the stay are “on hold” (whatever that means).
All that means is another lawsuit.
- Insert wedge.
- SWING!
I predict that eventually, Utah is going to regret ever fighting this, because it could really easily mean the absolute end of state bans on marriage equality within the US.
“You guys better not consummate! There’s a stay!”
To what end another lawsuit? If Shebly gets affirmed, then the marriages proceed. If he gets reversed, then they’re void.
I don’t know that Utah will end up regreting fighting it. If they don’t fight it, then their marriage laws fall. If they fight it and lose, then they’re no worse off. (If they win, then they win).
While the appeal is pending, all sex is strictly non-marital. Which means you get to enjoy it.
Only single people use the term “non-marital sex”. Married people know that’s the only kind there is. 
Strategically, they’ve already lost, although they don’t realize it.
There is no way to separate the ultra-conservative Mormon political and religious leadership of Utah. The political leaders are faithful Mormons who pretty much universally support the Mormon church first and foremost. The Mormon church leadership comprises fifteen white men stuck in time past, believing that homosexuality is a sin, and needs to be punished.
While all(?) conservative religions view homosexuality as a sin, it is particularly an issue for Mormonism as one of the core beliefs is eternal progression. We were all spirit children (male or female), came to this world and the righteous will become gods and goddesses in the next world, creating our own planets and having our own spirit children which will become humans there and then gods and goddesses in their own right.
There simply isn’t room for LGBTQIA in God’s plan, and the Mormon leadership as said as much. As the LGBTQIA movement becomes more main stream, Mormonism loses a bit more of its moral leadership.
Gay rights is one area where more lay members are starting to break out of the traditional compete lock-step approval of the leadership. Specifically, in one recent poll of dissatisfied members, gay rights was seen by women as one of their major concerns. The Salt Lake Tribune runs a number of stories and Op-ed, such as this one supporting SSM.
Mormonism had created a story where only its leaders, the prophets and apostles and speak for God, and everyone should follow them. Mormonism has not traditionally had the equivalent of cafeteria Catholics, and issues such as this will help create a similar class of Mormons.
For the Mormon church, it’s a lose-lose situation.
Refusing to yield on this issue is causing more members to doubt as well as hurting the potential for more converts. Although Mormonism has billed itself as one of the fasting growing religions in the world, it’s actually flattening out, and outside of Africa and the western part of the US, it’s in decline. Like Jehovah’s Witnesses and Seventh Day Adventists, Mormonism has high turnover, requiring a host of new converts to make up for the loss of dissatisfied members.
Morally, I believe that SSM must be permitted. Legally, this will be interesting to see how it plays out, although I sincerely feel sorry for those caught in the crossfire.
Meanwhile in Missouri , the governor is threading the needle by allowing same-sex couples to file joint tax returns even though same-sex marriage remains illegal according to the state Constitution.
And another pebble gets added to the pile. Almost time for the avalanche…
Is it even possible to file a joint return with the feds and individual returns with a state? We don’t have state income tax in Florida so I have no idea.
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. So the statement that a law against SSM violates a person’s right of equal protection because of sexual orientation simply begs the question that this entire debate is about: Is sexual orientation a class entitled to heightened scrutiny? If yes, what is the basis for this finding?
Although gender is subject to intermediate scrutiny, it’s hard to make an argument that it discriminates against males and/or females as it only discriminates against the particular class of males and/or females who wish to marry a person of the same gender** basically rolling it into sexual orientation above and keeping the same question for debate.
The second component of the 14th amendment the due process clause which forbids deprivation of liberty without due process of law. This is not only procedural but substantive so that certain liberty deprivations, no matter the process used to deprive a person of them are violations of this clause. This one has only two tiers of scrutiny: (strict and rational basis, and some say the “rational basis with teeth” standard discussed by RNATB). If a right is “deeply rooted in the nations history and traditions” or is “fundamental to the concept of ordered liberty” then it is considered a fundamental right subject to strict scrutiny. Everything else is rational basis.
This starts the second part of the debate: Is it a fundamental right to marry a person of the same sex? Loving v. Virginia held that marriage is a fundamental right. Of course, as you pointed out, Loving dealt with interracial marriage and left alone state laws forbidding marriage between close relations, those already married, marrying someone underage, and same sex marriage. It is unclear, and again up for debate, if same sex marriage falls under the purview of Loving. To say that this decision would break what was a common law and through most of civilization an absolute pre-requisite to marriage is a high bar to overcome.
So, long story short, this thread has a lot of question begging. Statements talking about “unfair” and “discrimination” and “civil rights” and the like simply assume that sexual orientation is in a class like race, or that when the Supreme Court in 1967 declared that marriage was a fundamental right that they meant to include a not-yet considered definition of marriage. It’s a debate and I resent the accusations of bigotry from some posters here.
**Yes, I know that this was the same argument used by Virginia in Loving, i.e. that it was not racist because blacks and whites equally could not marry someone of a different race. This argument fails, however, because laws using gender as a class have been upheld for biological differences between the sexes whereas racial classifications are almost per se void as being unconstitutional.
I don’t think I disagree with anything you’ve written. My point was in response to asking why we quibble over equal protection standards of review when marriage is a fundamental right. My point was merely that, although we talk about “marriage” as a fundamental right, the term has many different meanings and the parameters of that “fundamental” right are entirely unclear (and, frankly, I find the notion of a fundamental right to the formal government recognition of your personal relationship choices to be uncompelling).
I’m ambivalent on the merits of the equal protection argument (and won’t attempt to argue it here), but it operates in a framework that makes more sense to me. Yes, we need to decide if it’s gender discrimination or sexual orientation discrimination (or simply marriage laws were invented out of animus to same sex couples), but I find those arguments to be much easier to make in a compelling manner. Even if they’re not that easy to apply. And that I think that this the reason that courts have been dealing with the appropriate standard of review.
That’s all I was saying.
One that’s damn close to its sell-by date and soon for the circular file. You are EXACTLY in the position of the defenders of miscegenation laws on the eve of Loving. And those who are defending the marriage bans will be remembered EXACTLY as those defenders are today.
Life’s tough, i’nit? Go comfort Jerry Falwell’s ghost.
Thank you for this informative post. I think you’re incorrect about gender. You say:
In the social sciences, “gender” is not limited to the two biological sexes. So if gender meaning gender is subject to intermediate scrutiny, of course it includes gay people. So which is the protected class, gender (cultural) or sex (biological)?
Also, when you say “who wish to marry,” you are suggesting an element of choice, as if the category of marriage partner is trivial: not so.
At any rate, I would argue strongly that it is discrimination by sex, as women are forbidden from doing something that men are allowed to do: marry a woman.
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Is it even possible to file a joint return with the feds and individual returns with a state? We don’t have state income tax in Florida so I have no idea.
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Yes, and it’s a pain in the ass. When we were in California, I had to prepare a pro forma Federal joint return to have the numbers to plug into the joint return for CA, then file two individual Fed returns. Prepare four returns and file three of them.
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.
ETA… We want to go back to CA. When that happens, we’ll be down to preparing and filing only two returns.
This is correct and so obvious that I don’t get why others don’t see it. One can discuss it as if it’s a rational legal nicety but it all boils down to bigotry plain and simple. Sure, let the legal stuff play itself out but all the anti-SSM opponents are doing is delaying the inevitable and if they consider that some sort of victory then more power to them.
Wasn’t it well into the 1970’s when some withered old dude in Salt Lake City got the “revelation” that black people could finally be priests in the LDS church? The same thing will happen again in thirty years or so for SSM decades after it will have been a mundane part of every day life here in these United States.
In 1978. Strangely enough, around the time that other college sports teams were starting to boycott playing against Brigham Young University because of the ban on African-American priests.
Yes, but we can write that off to coincidence.
But classifications based on biological gender distinctions do get intermediate scrutiny - which would probably spell the end of restrictions on SSM.
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?