Posted by:
Brother Of Jerry
(
)
Date: July 19, 2018 07:42PM
Last night I saw Church and State, at the Broadway in SLC. It is a documentary about the successful fight to legalize same-sex marriage in the US. I think it is one of life's ultimate ironies that it was a Utah case that legalized gay marriage in the US. If there is a god, she has a wicked sense of humor.
RFM followed the whole saga pretty closely (in fact, the is probably a dramatic understatement), so if you have been reading here for 5 or more years, you should be familiar with more detail than was in the movie. The director/screenwriters were forced to pick and chose because of time constraints.
One of the problems for the opponents of marriage expansion was the difficulty in making a coherent argument that wasn't religion based. The best they could do was to make it totally about protecting children, with "this is going to damage marriage" as a side dish.
At the local level, Judge Shelby asked the opponents to show exactly how marriage would be damaged. They of course couldn't, because that had been a phony rationale from the get-go. The fight was not about protecting marriage, it was about denying social acceptance of same-sex families. They didn't want anything that made it easier to be homosexual.
Long story short, Judge Shelby ruled that the government had not demonstrated a compelling reason to deny marriage to same-sex couples, and based on the 14th Amendment guarantee of equal protection, he ruled they could marry.
There was a group of us who went to see the movie, and had a discussion afterwards (Unitarians, what else?). One of the participants is not a minister, but was licensed in Utah to perform marriages and she was part of the happy pandemonium at the SL County offices. That whole story deserves a separate thread, so story for another day.
At the appeal of the case to the Tenth Circuit, again, the fact that the opposition could not make a religious case for opposing the decision because of that pesky First Amendment severely hampered what they could argue. their objections, fundamentally were religious, but they couldn't present those arguments.
The Tenth Circuit upheld Shelby. The SC upheld the Tenth Circuit. Kitchen v. Herbert became the law of the land.
This was not in the movie, but I remember it happening. The Utah legislature wanted to file an amicus brief with the SCOTUS. They decided that the AG office was not up to the task, and they paid $2 million to an outside (Idaho?) law firm to write the brief. It was a rehash of The Children! and The Damage to Marriage!
When the SC decision came down, as far as I am aware, none of the opinions, neither concurring nor dissenting, quoted word one from the Utah brief. The SC saw it as basically a states rights versus 14th Amendment case, and they ignored all the blather from Utah.
Politically, politicians can get away with a certain amount of Bible thumping. Not that they should, but yes, the USAG got away with quoting Romans. But in an actual court of law, that doesn't fly as the basis for an argument. Alabama SC Justice Roy Moore disagreed with that, and got his ass fired twice by federal judges.
Attempts to insert religion into our legal system is an ongoing source of tension. The First Amendment has held up rather well, all considered, but it is constantly being chipped at, which was Ms Jacoby's point.
[edit: Derek Kitchen, whose name is on the lawsuit, just won the Dem primary to run for Utah State Senate, from the district I live in. He will almost certainly win]
[edit 2: Kitchen v. Herbert wasn't the SC case that legalized same-sex marriage nationwide. The SC let the Tenth Circuit decision stand, but chose not to take the appeal of the case, so gay marriage was legal in the Tenth Circuit. The SC ruled on marriage expansion in Obergefell v. Hodges, about six months later.
Edited 2 time(s). Last edit at 07/19/2018 10:01PM by Brother Of Jerry.