Those wanting to bring back a ban on same-sex marriage in Utah should carefully consider the U.S. Supreme Court’s majority opinion when it struck down the federal Defense of Marriage Act last year. The opinion, written by the court’s traditional swing vote, Ronald Reagan appointee Justice Anthony Kennedy, had this to say about DOMA:
“This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects. ... And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
It’s simply not logical to expect the same court to now say, “But all this is OK in Utah.”
That is why U.S. District Judge Robert J. Shelby two weeks ago killed Utah’s same-sex marriage ban and declined to stay his decision when it was appealed. And it’s why the 10th Circuit Court of Appeals also denied a stay and gave no indication that Utah’s appeal would succeed.
If Utah’s leaders feel blindsided by those decisions, then they haven’t been paying attention. Same-sex attraction, far from being unnatural, has been around since the dawn of time, and in recent decades mainstream America has come to accept it as something other than deviant. The American Psychiatric Association has considered homosexuality a normal sexual variation, not a mental disorder, since 1973. The Supreme Court in 2003 made same-sex sexual activity legal in every state, and then last June the court took that step of saying same-sex couples have a due-process right to marry.
Younger people by and large take a more libertarian view of same-sex relationships, and that is what has fueled the nation’s shift since Utah passed its ban in 2004.
There are 32 states with laws still in effect banning gay marriage, but only one state has passed such a law since 2006. Since that time seven state legislatures have passed laws to allow same-sex marriage, and three more states did so through popular vote. Court decisions have struck down the laws in another seven states, including Utah. One of those states is California, where state officials stopped defending their same-sex marriage ban when it became obvious where the future lies.
Utah’s ban passed with 66 percent of voters approving it, but it’s a legitimate question whether it would pass today if another election were held. Even the LDS Church has gone from actively participating in the marriage wars to simply explaining its own beliefs and practices.
The tide has turned. It’s time for Utah to turn with it.