Utah's Hypocrisy on Gay Marriage

by John M. Curtis
(310) 204-8700

Copyright December 24, 2013
All Rights Reserved.                                      

             Begging the conservative10th Circuit Court of Appeals in Denver to reverse Salt Lake City’s U.S. District Court Judge Robert J. Shelby’s Dec. 20 ruling declaring Utah’s 2004 Defense of Marriage law unconstitutional, Utah hoped to get injunctive relief from the Circuit Court.  Since Shelby ruled Dec. 20 that the state could no longer enforce its ban on same-sex marriage, gay couples have flocked to County clerks to obtain marriage licenses.  With Shelby’s ruling, Utah, a predominantly Mormon state, became the 18th state to permit same-sex marriages.  Utah’s Salt Lake City-based Mormon Church funneled over $25 million into the successful 2008 campaign to ban gay marriage in California AKA Prop 8, a constitutional ban on same-sex marriage.  “Only a marriage between a man and a woman is valid in California,” read Prop 8, passed by voters 52% to 47% Nov. 5, 2008.

             Despite a pyrrhic victory in 2008, the voter-approved initiative was declared unconstitutional by the U.S. District Court Judge Vaughn Walker Aug 4, 2010 in Hollingsworth v. Perry.   Two weeks later, the liberal-leaning San Francisco-based 9th Circuit Court of Appeals upheld the ban on Prop 8 but stopped the practice of same-sex marriage until exhausting Supreme Court remedies.  Closing the book on Prop 8 June 21, 2012, the U.S. Supreme Court refused to rule on Prop 8, upholding Walker’s and 9th Circuit’s ruling that Prop 8 was unconstitutional.  Eight days later same-sex marriage resumed in California.  While Utah would like to see things differently, the constitutional issues on same-sex marriage remain the same.   Since the Massachusetts High Court ruled in 2004 that domestic partnerships violated same-sex couples’ 14th amendment rights, same-sex marriages were legal.

             Fighting tooth-and-nail to stop same-sex marriage, Utah has no problem turning a blind eye on the polygamous Mormon sects like the Fundamentalist Church of Jesus Christ of the Latter-Day Saints {FLDS] in Southern Utah that routinely permits polygamy but more to the point, child sexual abuse.  Picking on gay people puts the spotlight onto the perverse practice of Utah’s polygamous sects that routine marry and impregnate elementary school age girls with mid-age and old-age religious pedophiles.  “Until the final word has been spoken by the Supreme Court on the constitutionality of Utah’s marriage laws, Utah should not be required to enforce Judge Shelby’s view on a new and fundamentally different definition of marriage,” wrote the state to the Denver-based 10th Circuit Court, hoping to validate Utah’s 2004 Defense of Marriage [DOMA] Initiative.

             With the Mormon Church accounting for roughly two-thirds of Utah’s 2.8 million population backing Utah’s 2004 DOMA law, it’s doubtful that the U.S. Supreme Court would intervene, any more than they did in California.  If the Denver-based 10th Circuit reverses Utah’s 2004 DOMA law, preventing same-sex marriage, then the matter would likely go to the U.S. Supreme Court.  If the 10th Circuit Court upholds Utah’s voter-approved 2004 ban on same-sex marriage, it’s also likely the Supreme Court would not hear plaintiffs’ arguments regarding the unconstitutionality of Utah’s DOMA.  Shelby’s decision Dec. 20 opened the door for gay couples to marry in Utah unless the 10th Circuit Court can stay the ban.  California’s 9th Circuit Court stopped the courts from implementing same-sex marriage until the review was complete by the U.S. Supreme Court.

             Unlike California, where the 9th Circuit Court declared Prop 8 unconstitutional, irking backers like the Salt Lake City-based Mormon Church and James Dobson’s Colorado Springs-based Christian Focus on the Family, it’s unlikely the 10th Circuit would reverse Utah’s DOMA.  Utah County Clerk Brian Thomson delayed Judge Shelby’s ruling before issuing marriage licenses to same-sex couples.  “I totally understand the position I’m in,” said Thomson, refusing to start issuing marriage licenses to gay couples.  “But I have a responsibility as an elected official to proceed with caution,” awaiting a decision by the 10th Circuit Court.  Utah lawyer Philip Lott called Shelby’s ruling a “chaotic situation,” believing the voters backed DOMA in 2004.  “Utah should be allowed to follow its democratically chosen definition of marriage,” said Lott, rejecting Shelby’s ruling.

             California voters found out the hard way that voter initiatives don’t always pass the constitutional smell test.  While Lott would like to see Utah’s “democracy” rule, ballot initiatives that attempt to legislate discrimination or racial prejudice can’t stand.  If the 10th Circuit court upholds Utah’s DOMA, plaintiffs will be on firm grounds to appeal to the U.S. Supreme Court.  Since the 9th Circuit ruled against California’s Prop 8, it’s not going to be easy for the 10th Circuit to ignore the ruling.  All states fall under the same federal umbrella, regardless of regional differences.  If the 10th Circuit upholds Utah’s DOMA, plaintiffs will have solid ground on which to appeal to the U.S. Supreme Court.  Shelby’s 14th amendment issues of due process and equal protection apply the same to Utah as California.  Whether voters like it or not, Utah’s 2004 DOMA may follow the same fate as California’s Prop 8.

 John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com.and author of Dodging the Bullet and Operation Charisma.