Thursday, December 26, 2013

Is there much of a future for marriage discrimination?

Photo: Salt Lake Tribune
With fewer than three million citizens, Utah is our 34th most populous state. Yet it may have opened the flood gates to national marriage equality. Will this event finally turn off the spigot of money to groups like National Organization for Marriage? With less money can these groups continue to frustrate (or attempt to frustrate) equality?

Judge Robert J. Shelby
According to the FEC, U.S. District Court, Judge Robert J. Shelby, has not been a donor to any federal electoral campaign. His party affiliation, if any, is unknown. He is 43 years old and a veteran of Operation Desert Storm who once worked as a reservation clerk for a hotel. President Obama nominated Shelby in 2012 on the recommendation of Senator Orin Hatch. His nomination was supported by Utah's other Senator, the very conservative Mike Lee.

The key elements of Shelby's 53 page decision in Kitchen et al v Herbert et al are contained in the final two paragraphs.

The State of Utah has provided no evidence that opposite-sex marriage will be affected in any way by same-sex marriage. In the absence of such evidence, the State’s unsupported fears and speculations are insufficient to justify the State’s refusal to dignify the family relationships of its gay and lesbian citizens.
Judge Shelby goes on to conclude:
The court GRANTS the Plaintiffs’ Motion for Summary Judgment (Dkt. 32) and DENIES the Defendants’ Motion for Summary Judgment (Dkt. 33). The court hereby declares that Amendment 3 is unconstitutional because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. The court hereby enjoins the State from enforcing Sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution to the extent these laws prohibit a person from marrying another person of the same sex.
This is elegantly simple and straightforward. It is no wonder that the Tenth Circuit Court of Appeals denied a request for a stay. To issue a stay the Court would have to find, 1) a reasonable basis on which the state might prevail on appeal and; 2) that the state would be irreparably damaged by allowing Shelby's order to stand.

The two elements are, in effect, the same thing. If there is no irreparable harm then how can the state prevail on appeal? At its core, their case is based on, as Ted Olson put it, a list of "horribles" unleashed on society by gay marriage.

The simple fact is that opposition to marriage equality is based upon a religious objection. Opponents have tortured logic for years in order to manufacture improbable, theoretical "consequences" that are not only unproven but have never materialized during more than ten years of experience in Massachusetts. The self-created religious victims of marriage equality, that opponents have been raising money off of recently, become irrelevant in a court of law. They only prove that some people want to discriminate in public accommodations regardless of prevailing laws against doing so. In many ways they prove our case that such laws are necessary.

Each circuit court is assigned to one of the Supreme Court Justices. In this case that would be Justice Sonia Sotomayor. It is hard to imagine that she would issue a stay on this matter. This all puts Governor Herbert in a position similar to what Chris Christie faced two months ago. Christie had the good common sense to realize that the further expenditure of time, money and focus would be irresponsible. The difference is that Herbert is famous for his opposition to gay rights. We will have to see how this plays out.

This decision could wind its way through the appeals court and wind up at the U.S. Supreme Court in 2015. All the while gay couples will be marrying and nobody will be affected other than those same gay couples and their children. It seems doubtful that the Supreme Court would choose to even hear this case.

So back to my original question; Will this decision in Utah finally turn off the spigot of money to groups like National Organization for Marriage? After all, Utah is one of the reddest of states. If Utah has equality then why not Mississippi?

Even if it does restrict the flow of money, it will not diminish the rhetoric. At least not in the immediate future. One of NOM's largest donors is hedge fund manager Sean Fieler who seems to have money to burn. Other than religious extremism, I have no idea what would prompt someone to spend millions of dollars on an issue that doesn't affect him in any way whatsoever.  In addition to extreme religious devotion, the Catholic Church is an ancient monarchical organization that rewards its most faithful with a knighthood in one of a number of arcane chivalric orders. Perhaps Fieler is after some form of official recognition. One would think that he could achieve his goals through real altruism. Just how irrational is this guy? I cannot answer that but there are a few things that I do know to a reasonable certainty:
  1. National marriage equality is inevitable.
  2. Popular acceptance of marriage equality is growing rapidly.
  3. Resistance to equality is not only futile but counter-productive.
Groups like NOM run on money and religious zealotry. Somehow I think that less money could diminish the zealotry.
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