Those who disagree with the rulings of federal judges — such as Wednesday’s 10th Circuit Court of Appeals decision upholding the right of same-sex couples to marry in Utah — are often heard to describe their views as opposition to "judicial activism."
Even the dissenting judge in the 2-1 ruling that struck down — again — Utah’s Amendment 3 decried his colleagues’ action as judges setting themselves up as "philosopher kings" and imposing their will in an undemocratic manner.
But both common sense and a careful reading of the majority opinion from the 10th Circuit panel make it clear that, on the issue of marriage equality, the courts are not striking out into an undiscovered country. They are taking an honest look at the world as it exists and trying to make our understanding of our basic law compatible with the huge shift that the culture has already made.
In upholding the December decision by U.S. District Court Judge Robert Shelby, Appeals Judges Carlos F. Lucero and Jerome A. Holmes flatly reject the flaccid arguments made by the state of Utah — and its expensive outside expert lawyers — that allowing same-sex marriage can or does in any way harm, degrade or affect opposite-sex couples as they choose to marry, or not, divorce, or not, and bear and raise children, or not.
What a ban on same-sex marriage clearly does, the court correctly ruled, is cause deliberate and unjustified harm to the very real same-sex couples who have formed loving and long-lasting relationships. Couples who, in many cases, are raising children in circumstances where the greatest potential harm comes not from the "non-traditional" nature of their relationship but from an official government decree that their family, their parental bonds, their love for one another, is somehow less worthy than the same attributes found in opposite-sex couples.
Bound as it is by the U.S. Supreme Court’s ruling in the Windsor case, the one that invalidated the federal Defense of Marriage Act, it is difficult to see how it could rule otherwise. And, as part of an unbroken trend of federal rulings — another was handed down in Indiana on Wednesday — it is increasingly unlikely that the Supreme Court, or any other authority, will reverse that trend.
The court also made proper note of the fact that the state first attempted to convince Shelby that there was valid scientific evidence of a claim that children raised in same-sex households are somehow disadvantaged compared to those raised in opposite-sex situations but that, by the time the case was argued at the appellate level, all that "evidence" had been exposed as junk science and dropped from the state’s plea.
Rather than create another marriage rush at Utah courthouses, and place more families in a legal limbo, the appeals panel delayed the effect of its ruling until the state has a chance to appeal to the Supreme Court. Which, sadly, the state has said it will do.
It was too much to expect, apparently, that Gov. Gary Herbert and Attorney General Sean Reyes would refrain from throwing more good money after bad, and doing more damage to the state’s good name, by giving up on this doomed defense of the indefensible.
Apparently, they want to remain on the wrong side of history just a little bit longer.
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