Et Tu, Utah?

by Michael Abernethy

7 February 2014

The battle for gay marriage rights in Utah is turning so ugly and complicated that it will make the battle in California look like a trip to Disneyland.
Gay marriage champagne glasses image from

“And now, by the power vested in me by the state of Utah, I now pronounce you wife and wi… what’s that? I no longer have powers vested by the state of Utah? Dang, I should have talked faster.”

Indulge me a minute, here. I can’t eat gluten. That means no bread of any kind, no pasta, brown gravy, breaded food (like fried chicken), soy sauce, cake and pastry. One day I could, then suddenly, I coudn’t. This is a traumatic turn for someone who once answered the survey question, “What is your favorite snack?” with “Toast”. Honestly, I could live on lasagna, enchiladas, toast, Krispy Kreme donuts, and cake, and be a happy, albeit obese, man.

This tragic turn occurred due to a heavy dose of antibiotics I had to take last spring for double ear infections, which leads to today’s medical tip: if on antibiotics for a long period of time, ask your doctor if you should be taking a probiotic to protect your stomach. I really miss my gluten and dream of lemon-glazed French toast, double-stuffed Oreos, country fried steak with thick cream gravy, chicken alfredo, and thick-cut onion rings. OK, my arteries are probably rejoicing, but I’m not.

I mention this malady because I feel an odd bond with my gay and lesbian kin in Utah, who didn’t have the right to marry, then did, then didn’t again. I know it may seem like a big leap, comparing my gluten problems with the right to marry, but I can’t overstate how much I love toast. 

Oh sure, I could use gluten-free bread, or as I call it “variations on a rice cake”, just as those gay men and lesbians in Utah could just go to another state and get married. Yet, it’s not the same as being in your home town, exchanging vows in front of all your family and friends, not just the ones who can afford to travel, being sure to invite the straight friends from high school for whom you’ve already had to buy two or three different wedding presents.

Unfortunately, the battle for gay marriage rights in Utah is turning so ugly and complicated that it will make the battle in California look like a trip to Disneyland. To understand what’s going on in Utah, one must first know the cast of straight men and one female justice who are deciding the rules for gays and lesbians there, married or unmarried.

First is Judge Robert J. Shelby, who ruled on 20 December 2013 that the Utah constitutional amendment banning gay marriage was unconstitutional (the big federal constitution, in this case). The ruling caught a few people off guard, most likely those Republicans and Tea Party members who had advocated for Shelby’s appointment to the bench. Shelby, married with two kids, is a registered Republican and Gulf war veteran. His ruling set off a rush to the altar by 1,300 lesbian and gay couples, quickly sewing the hems of their wedding gowns and anxiously waiting for the caterers to come up with an acceptable menu. Shelby’s ruling in the case was notable because, according to The New York Times, he referred to the plaintiffs by first name, retelling the stories of how they fell in love, which is a good indication that he identified the plaintiffs as people and not case numbers. (”“Utah Judge Unexpected as a Hero to Gay People”, by Jack Healy, 29 December 2013).

This brings the story to the office of Justice Sonia Sotomayor, who administers the 10th circuit, where Judge Shelby’s court resides. Representing the Supreme Court, Justice Sotomayor stayed the order, which meant no more marriages. It was tempting to cry, “Say it ain’t so, Sonia! We thought you were an ally!” but the Justice followed normal procedure, simply stating that Judge Shelby’s ruling wouldn’t go into effect until the case had gone through the judicial system, when it will most likely wind up in front of Justice Sotomayor again, along with her fellow justices. She didn’t nullify anything.

That was Governor Gary R. Herbert’s job. The Republican governor announced that none of the marriages that occurred really happened. Oh sure, there was a cake and a ceremony and all, but those marriages didn’t “count”. Those who had followed the legal steps for marriage would be denied the due benefits of marriage as long as the case was under appeal. Utah Attorney General Sean D. Reyes, a Herbert appointee, complicated the matter further when he ordered county clerks to mail the completed marriage licenses to those gay and lesbian couples who had married. For them, marriage really is just a piece of paper.

Currently, four couples are suing the Governor. The case has been turned over to the federal courts. With more suits sure to follow, this issue could be coming at the Supreme Court from a variety of directions.

Should those cases reach the highest court, or when they do, it will be interesting to see if the Attorney General’s office files briefs supporting or opposing the marriage ban, or if they remain silent. That will certainly depend on who is president then. Under our current president, the Attorney General is Eric H. Holder, Jr., who gave a good idea of where the Obama administration stood when he declared that the federal government would recognize the Utah marriages, even if the state wouldn’t.

With 17 states already allowing gay marriage and the battle being fought in other states to either gain rights or prevent bans, why is Utah so important? For one, allowing gay marriage in Utah would be a huge victory in a conservative state. After all, Utah is the land of a million Mormons (actually, about 1,970,000, according to the latest census, 69 percent of the state’s population). The Church of Latter Day Saints clearly opposes gay marriage, having donated half of the funds spent opposing gay marriage in California’s Prop 8 fight.

Beyond that, all of Utah’s statewide and national elected officials are Republicans, with the exception of Representative Jim Matheson, a Democrat. While it can’t be argued that all Mormons and all Republicans oppose gay marriage, the multitude of Republican Mormons makes Utah a less than desirable gay get-away spot.

The demographic of Utah will make the state a hotbed for social scientists should gay marriage be allowed. One can easily picture sociologists flocking to the state to study how the conservatives are adjusting to having something so disagreeable shoved upon them, in the same way that they studied rednecks and Klansmen after blacks gained voting rights in the deep South. Although it’s hard to imagine a group of Latter Day Saints mounting horses and riding through the night in sheets to terrorize gay and lesbian couples (seriously, can you picture the Osmonds galloping in white gowns with torches?), the potential for backlash against LGBT individuals is great.

Finally, and more importantly, the battle in Utah raises important Constitutional questions, such as, Does the federal government have the right to tell states and citizens what they can include in their state constitutions? Clearly, it does. Although hard to imagine, if a state adopted a constitutional amendment allowing slavery, it would be struck down without question, as it is a clear violation of the 13th Amendment.

However, there is no Constitutional statement on the issue of marriage, what it is or who it is for. Although it could be argued that this was a glaring omission from a bunch of men in tights and wigs, the Constitution isn’t decided to dictate life decisions, so we must rely on judicial interpretation of the 14th Amendment, which states in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

One could take two approaches and run with it here. The first is the idea of marriage as a privilege, which it is. Since marriage isn’t stated as a fundamental right in the Constitution or Declaration of Independence, it could be considered a privilege granted to the citizenry. If it is a privilege, it must be available to all, no restrictions.

The second approach would be to focus on the last phrase quoted above, “equal protection”. By virtue of the fact that married citizens have rights (or privileges) afforded them, such as tax breaks, Social Security inheritance, and hospital visitation, they have protections against financial burdens and denial of association not afforded to gay and lesbian individuals.

Should the Utah case make it to the Supreme Court, its outcome could have a monumental impact on the 29 states that have constitutional amendments banning gay marriage. A court ruling overturning Utah’s ban and upholding Judge Shelby’s ruling could have a domino effect, as more states will see their own bans overturned. With a legal precedent from the country’s highest court to guide them, federal judges will be free to follow Judge Shelby’s lead without having to worry that they are setting up a drawn-out clash crawling slowly through the judicial system.

Some things in life can’t be changed, like the fact that I will spend the rest of my life walking past bakeries with all the droopy-eyed sadness of Julie Andrews in Victor/Victoria. Being on the wrong side of history, however, is something one can change. Whether it happens now or later, gay marriage will someday be legal in Utah, as well as Montana, Texas, and Alabama. As a younger generation that is accepting of gay marriage comes into power and Justices Scalia and Thomas retire and are replaced by people who’ve actually read the Constitution, gay marriage will be the law.

Of course, that’s little consolation for a lot of gays and lesbians in Utah who were halfway to the wedding chapel.

Topics: gay marriage
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