Saturday, December 21, 2013

Judge Shelby's Decision Is Being Read in North Carolina

Judge Robert Shelby
North Carolina has its Amendment One banning same-sex marriage. Until yesterday the state of Utah had its Amendment Three, which did the same thing. But no more. Federal Judge Robert Shelby threw the whole thing out, and as of today, same-sex couples were acquiring marriage licenses in Utah.

North Carolina, you might want to pay attention to the legal arguments put forward by the state of Utah and the way Judge Shelby demolished them. Something similar will be coming to a federal court near you soon.

1. The State argued that "Same-Sex Couples Are Not Qualified To Marry Because They Cannot Procreate."

Judge Shelby ruled: The U.S. Supreme Court has recognized “important attributes of marriage that exist besides procreation,” which is why, for example, prison inmates have been allowed to marry even if they are unable to consummate their marriages. “These attributes of marriage,” he wrote, “are as applicable to same-sex couples as they are to opposite-sex couples.”

2. The State argued that "Same-Sex Marriage Is A “New Right.”

Judge Shelby ruled: "While it was assumed until recently that a person could only share an intimate emotional bond and develop a family with a person of the opposite sex, the realization that this assumption is false does not change the underlying right. It merely changes the result when the court applies that right to the facts before it. Applying that right to these Plaintiffs [three same-sex couples], the court finds that the Constitution protects their right to marry a person of the same sex to the same degree that the Constitution protects the right of heterosexual individuals to marry a person of the opposite sex."

In other words, there is no such thing as “gay marriage” or “straight marriage”; there is only marriage.

3. The State argued that "Tradition And History Have Always Recognized Marriage As Between One Man And One Woman."

Judge Shelby ruled: "Here, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian. The court cannot ignore the fact that the Plaintiffs are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex. The court, and the State, must adapt to this changed understanding."

4. The State argued that "Prohibiting Same-Sex Marriage Does Not Discriminate On The Basis Of Sex."

Judge Shelby ruled: "In Loving [Loving v. Virginia, the 1967 Supreme Court case that overturned laws prohibiting interracial marriage], Virginia argued that its anti-miscegenation laws did not discriminate based on race because the prohibition against mixed-race marriage applied equally to both white and black citizens. The Court found that 'the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.' Applying the same logic, the court finds that the fact of equal application to both men and women does not immunize Utah’s Amendment 3 from the heightened burden of justification that the Fourteenth Amendment requires of state laws drawn according to sex.

5. The State argued that "The Amendment Was Not Passed Out Of Animus Against Same-Sex Couples."

Judge Shelby ruled (and please note the striking similarities to the situation in NC with Amendment One): "First, the avowed purpose and practical effect of Amendment 3 is to deny the responsibilities and benefits of marriage to same-sex couples, which is another way of saying that the law imposes inequality. Indeed, Amendment 3 went beyond denying gay and lesbian individuals the right to marry and held that no domestic union could be given the same or substantially equivalent legal effect as marriage. This wording suggests that the imposition of inequality was not merely the law’s effect, but its goal.

"Second, Amendment 3 has an unusual character when viewed within the historical context in which it was passed. Even though Utah already had statutory provisions that restricted marriage to opposite-sex couples, the State nevertheless passed a constitutional amendment to codify this prohibition. This action is only logical when viewed against the developments in Massachusetts, whose Supreme Court held in 2003 that the Massachusetts Constitution required the recognition of same-sex marriages. The Utah legislature believed that a constitutional amendment was necessary to maintain Utah’s ban on same-sex marriage because of the possibility that a Utah court would adopt reasoning similar to the Massachusetts Supreme Court and hold that the Utah Constitution already protected an individual’s right to marry a same-sex partner. Amendment 3 thereby preemptively denied rights to gay and lesbian citizens of Utah that they may have already had under the Utah Constitution."

6. The State argued that "Banning Same-Sex Marriage Promotes 'Responsible Procreation.' "

Judge Shelby ruled: "The State has presented no evidence that the number of opposite-sex couples choosing to marry each other is likely to be affected in any way by the ability of same-sex couples to marry. Indeed, it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Both opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support. If there is any connection between same-sex marriage and responsible procreation, the relationship is likely to be the opposite of what the State suggests. Because Amendment 3 does not currently permit same-sex couples to engage in sexual activity within a marriage, the State reinforces a norm that sexual activity may take place outside the marriage relationship."

7. The State argued that "Opposite-Sex Couples Make Better Parents."

Judge Shelby ruled: "There is no reason to believe that Amendment 3 has any effect on the choices of couples to have or raise children, whether they are opposite-sex couples or same-sex couples. The State has presented no evidence that Amendment 3 furthers or restricts the ability of gay men and lesbians to adopt children, to have children through surrogacy or artificial insemination, or to take care of children that are biologically their own whom they may have had with an opposite-sex partner. Similarly, the State has presented no evidence that opposite-sex couples will base their decisions about having children on the ability of same-sex couples to marry. To the extent the State wishes to see more children in opposite-sex families, its goals are tied to laws concerning adoption and surrogacy, not marriage."

8. The State argued that "It’s Important To Proceed With Caution On Same-Sex Marriage."

Judge Shelby ruled: "Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse."


Anonymous said...

These words will fall on the deaf, bigoted ears in Raleigh

brotherdoc said...

Were the same authors (I don't know who, ALEC, or Focus on the Family, or whoever) involved in drafting the Utah and NC amendments? Clearly the pattern of the document is the same. A paragraph by paragraph comparison of the Amendments would be helpful. BTW Judge Shelby is an Obama nominee, who passed the Senate by voice vote just a little over a year ago--he had the support of both Utah's Republican Senators, so no filibuster.

Not Really said...

And here is why elections really do matter. If we had elected McCain or Romney, it is not likely that a judge like Shelby would have been appointed. For all those disillusioned liberals who think both parties are the same and it's not worth it to vote, here's some of the best proof of why it is incredibly important to get out and vote in every election. Obama may not be perfect, but the ripple effects coming from his presidency will cause positive outcomes like this for years to come.