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Same-sex marriage rolls

By MICHAEL KIRKLAND, UPI Senior Legal Writer   |   Dec. 29, 2013 at 3:30 AM   |   Comments

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WASHINGTON, Dec. 29 (UPI) -- As the nation enters the 14th year of the 21st century, the fight over same-sex marriage is far from over.

Despite pronouncements from a reality TV star -- who said they're going straight to hell -- gays and lesbians are instead going straight to the courts, where they have met with some success.

But that success comes at the expense of the clear wishes of voters in many states. The courts, and ultimately the U.S. Supreme Court, will decide which will prevail -- the rights of state voters to say what constitutes marriage, or the individual rights of same-sex couples who want equality under the law.

The latest skirmish in the social war occurred last week in Utah. A federal judge quickly refused a state request to stay his ruling that earlier struck down Utah's ban on same-sex marriage.

State attorneys had told U.S. District Judge Robert Shelby in Salt Lake City if same-sex couples were allowed to marry in Utah they would be irreparably harmed if his ruling eventually is overturned on appeal, the Salt Lake Tribune reported.

After the short hearing Monday in Salt Lake City on the request for a stay, Shelton took less than an hour to return to the courtroom and issue a denial. The judge said the state merely was raising arguments he had already rejected.

Shelby ruled Utah's Amendment 3, approved by 66 percent of voters in 2004, is unconstitutional, saying the ban violated the U.S. Constitution's equal protection and due process guarantees. He granted the state's request for a hearing Monday morning on whether the ruling should be stayed.

State attorneys asked the appeals court for a stay Monday, were refused and pledged to go all the way to the U.S. Supreme Court State officials said it may take several days before they ask the high court for a stay.

Such a request would go to Justice Sonia Sotomayor, who oversees the circuit containing Utah. She can act on the request or refer it to the full U.S. Supreme Court for a vote. In the meantime, the appeals court has set up an expedited process.

The ruling in Utah came on the heels of a 5-0 New Mexico Supreme Court ruling that legalized same-sex marriage Dec. 19. The court ruled it was unconstitutional to deny gay couples a marriage license.

None of New Mexico's marriage statutes actually prohibit same-sex marriages, the New Mexico Supreme Court said, but "when read as a whole, the statutes have the effect of precluding same-gender couples from marrying and benefiting from the rights, protections and responsibilities that flow from a civil marriage."

The ruling took effect immediately.

Though Utah is appealing the decision, it was unclear whether New Mexico would follow its example. Gov. Susana Martinez, a Republican, issued no comment after the state Supreme Court handed down its unanimous decision. And some reports said the decision cannot be appealed.

If the Utah and New Mexico rulings hold up -- a very big if -- it would leave 32 states with intact bans on same-sex marriage.

Besides Utah and New Mexico, 16 venues for the moment allow court rulings, legislative action or referendums.

In statistics compiled by the social issues website ProCon.org, courts struck down same-sex marriage bans in California, June 28; Connecticut, Nov. 12, 2008; Iowa, April 24, 2009;, Massachusetts, May 17, 2004, and New Jersey, last Oct. 21.

State legislatures allowed same-sex marriage in Delaware, on July 1 this year; Hawaii, on Dec. 2, this year; Illinois (the law is set to take effect June 1, 2014); Minnesota on Aug. 1 this year; New Hampshire, on Jan. 1, 2010; New York, July 24, 2011; Rhode Island, Aug. 1 this year, and Vermont, Sept. 1, 2009.

Voters approved same-sex marriage in Maine Dec. 29, 2012; Maryland, last Jan. 1, and Washington state, Dec. 9, 2012.

The Washington, D.C., City Council legalized same-sex marriage, and licenses became available to gays and lesbians March 3, 2010.

As lawyers get out their pinstripes and $1,500 Testoni Norvegese shoes for litigation, the U.S. Supreme Court has never upheld the right to a same-sex marriage or ruled that states cannot ban such marriages. But Supreme Court precedent certainly gives gay-rights activists reason to hope.

Last June, the justices, in a 5-4 vote in a New York case, struck down provisions in the federal Defense of Marriage Act that discriminated against same-sex couples who had been legally married in states that allowed it.

As Chief Justice John Roberts pointed out in his dissent: "The court does not have before it, and the logic of its [majority] opinion does not decide, the distinct question [of] whether the states, in the exercise of their 'historic and essential authority to define the marital relation,' may continue to utilize the traditional definition of marriage."

Justice Antonin Scalia was so incensed at the majority opinion he read his dissent from the bench -- a sign of extreme displeasure -- and accused the court majority of delusions of grandeur.

Not all of DOMA, enacted in 1996, was under attack in the case or outlawed.

Section 2 says no state is required "to give effect to any public act, record, or judicial proceeding of another state that treats a relationship between two persons of the same sex as a marriage under its laws."

In other words, a same-sex marriage in Maryland, among the states that permit such unions, would not necessarily have to be recognized in any other state. That section still stands.

DOMA's Section 3, which was targeted, says: "In determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

The Obama administration said Section 3 had practical and harmful effects on same-sex couples.

"Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those states that permit them," the administration told the Supreme Court in a brief, "it excludes such marriages from recognition for purposes of more than 1,000 federal statutes and programs whose administration turns in part on individuals' marital status. ... Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married opposite-sex couples under federal employment, immigration, public health and welfare, tax and other laws."

In his majority opinion in the DOMA case, conservative Justice Anthony Kennedy was joined by the four liberal justices. Kennedy cited the number of states permitting same-sex marriage.

"The state's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism," Kennedy said. "Here the state's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the state used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage."

He added later: "DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the federal government. ... The Constitution's guarantee of equality 'must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot' justify disparate treatment of that group. ...

"DOMA cannot survive under these principles."

All four of the remaining conservative justices dissented, including the chief justice

"I agree with Justice Scalia that this court lacks jurisdiction to review the decisions of the courts below" in the DOMA case, Roberts said. "On the merits of the constitutional dispute the court decides to decide, I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act. Interests in uniformity and stability amply justified Congress' decision to retain the definition of marriage that, at that point [1996], had been adopted by every state in our nation, and every nation in the world.

"The majority sees a more sinister motive, pointing out that the federal government has generally [though not uniformly] deferred to state definitions of marriage in the past," Roberts said. "That is true, of course, but none of those prior state-by-state variations had involved differences over something -- as the majority puts it -- 'thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization.' That the federal government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising -- and hardly enough to support a conclusion that the 'principal purpose,' of the 342 representatives and 85 senators who voted for [DOMA], and the president who signed it, was a bare desire to harm."

Scalia was far more scathing in his dissent.

"This case is about power in several respects," Scalia wrote. "It is about the power of our people to govern themselves, and the power of this court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

"The court is eager -- hungry -- to tell everyone its view of the legal question at the heart of this case," he said. "Standing in the way is an obstacle [the Constitution], a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges' intrusion into their lives."

As all the world knows by now, Kennedy's stance in the DOMA case came as no surprise. Kennedy wrote the majority opinion in the Supreme Court's ruling in 1996's Romer vs. Evans.

A number of Colorado municipalities had passed "ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities."

But in a statewide referendum, Colorado voters adopted Amendment 2 to the state Constitution, which banned legislative, executive or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."

The affected communities filed suit and a state judge issued a preliminary injunction declaring Amendment 2 invalid. The judge was sustained by the Colorado Supreme Court.

In the U.S. Supreme Court, a 6-3 majority opinion written by Kennedy said Amendment 2 violated the U.S. Constitution's equal protection clause.

"We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else," Kennedy said. "This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws."

In 2003's Texas vs. Lawrence, which struck down the Lone Star State's anti-sodomy law, Kennedy wrote the 5-4 majority opinion that essentially told the government to get out of the bedroom.

So the four liberals, given Kennedy's putative aid, may have the muscle to rule same-sex marriage constitutional if they so choose. But will they choose that course?

The justices have a historical reluctance to get too far ahead of the U.S. public on social issues. For the moment, they may be content to leave the matter with the individual states and the lower courts.

© 2013 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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