I live in Provo, Utah.
That’s liberal, progressive, gay-friendly Utah.
It’s been an amazing week.
Okay, so, last Friday, I’m on Facebook, and a friend messages me, and says, with multiple exclamation points, “Federal judge just ruled Third Amendment unconstitutional.” Here’s how clue-less I was; my first thought was, ‘Third Amendment? So . . . the federal government can now quarter troops in our homes? What?’ But no. That’s the third Amendment to the Utah Constitution.
I think. Searching for the Utah Constitution on-line this morning, I couldn’t find the darn thing. I saw lots of stuff about the amendment process for the Utah Constitution, but all I could find on marriage was this: Article 1, Section 29 of the Utah Constitution, to wit: “(1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.” Our old pal Wikipedia’s article explains.
Last Friday, Dec. 20, a federal judge, Robert Shelby of the U.S. District Court for Utah, found that language, Amendment Three, Article 1 Section 29, unconstitutional, on Fourteenth Amendment grounds. This article does an effective job of breaking down the legal arguments on both sides, and the reasons given by Judge Shelby for ruling the way he did.
And so, people started getting married. Salt Lake County instantly began granting marriage licenses, and Salt Lake Mayor Ralph Becker began to perform marriages. A minister and his long-time partner asked if they could cut to the head of the line, so they could marry, and so he, the minister, could then also begin marrying people, for those who wanted a pastor to officiate. As the lines grew ever longer, a local Boy Scout troop stopped by with pizza for the County Clerks working late into the night. Since Friday, hundreds of couples have married, mostly in Salt Lake County, but also elsewhere. At forty bucks a pop for marriage licenses, the state coffers have been enriched to the tune of (do I multiply here? let’s see, carry the four) lots of money.
The state has tried to stop it. Which is perhaps the most hilarious aspect of the whole thing, actually, since it’s the State Attorney General’s office that has to file requests for emergency stays and motions and stuff, and that office has been in disarray for months. The previous AG, John Swallow, turns out, was a crook, but it took forever to force him out of office, with local papers doing stories day after day exposing various kinds of malfeasance by the guy, while Governor Herbert hung in there, defending him. So when it came time to file a request for a stay (stopping the marriages while filing an appeal of decision), the AG’s office basically just repeated the same arguments they’d used earlier, the arguments that Judge Shelby had just rejected. Not surprising when he refused to grant the stay, nor when the 10th District Court of Appeals also refused to grant one. I’m not an attorney, but it does seem to me that if you lose a case before a judge, and then appear before that same judge asking him to stay his opinion pending appeal, you might want to try different arguments than the ones that just lost. Just sayin’.
And so the weddings continue. And the Deseret News has been in fine fettle all week, with two big op-ed pieces fulminating against Judge Shelby’s ‘judicial activism.’ I was particularly struck by this passage in the first of those pieces, titled ‘Judicial Tyranny’.
It is true that state efforts to restrict marriage on the basis of race have run afoul of the federal constitutional protections against racial discrimination. But as we scour the legal landscape, we find no 10th Circuit or Supreme Court precedent that prevents Utah from adhering to a traditional definition of marriage. Nonetheless, Judge Shelby’s blithe mix-and-match approach to legal argumentation has, for the time being, created a new class of same-gender applicants deemed “married” under the Utah Constitution.
Hmmm. On Christmas, the DN published a more optimistic piece, suggesting that Utah has a ‘historic opportunity’ to vigorously defend traditional marriage in court. Here, though, is the second paragraph of the piece:
The unprecedented overreach by Judge Shelby — and most especially his refusal to temporarily stay the effects of his decision — has come at high cost. The immediate outcomes from Friday’s decision include a high dose of legal uncertainty for those licenses being issued under the court order as well as polarization of pubic opinion around these understandably emotional issues.
I don’t really see how Judge Shelby’s decision came at any particularly high cost. A lot of people who have been in long-term relationships got to get married. No one was hurt; no one was harmed. But there it is again: ‘legal uncertainty.’
In short, in both these piece, the DN is suggesting, strongly suggesting, that the marriage licenses issued by the State of Utah since last Friday may only be temporary. That Utah is seriously contemplating telling hundreds of married people that they’re not married anymore. That people who have, for example, filed joint tax returns may have violated tax law in doing so, may have to face penalties for doing so. What if some of those couples, over the next few weeks or months, choose to adopt children? You’re saying they’re going to lose their kids?
I understand that feelings are high right now. And since the Deseret News is choosing to see this as an opportunity to defend traditional marriage, once and for all, in court–imagining a sweeping decision ending all this same-sex marriage nonsense once and for all–then may I gently suggest that any such strategy has a public relations component? That seeing what we’ve been seeing for a week now, which is hundreds of happy couples embracing and kissing and holding hands and laughing and crying for joy as they marry the people they love is really super appealing and positive and awesome? And that coming back a year from now and telling all those people that they’re not married anymore might not, uh, play so well? In addition to being cruel beyond imagining?
There’s clearly a lot of push-back against Shelby’s decision. Famously conservative State Senator Stuart Reid published a really extreme op-ed piece in the Salt Lake Tribune, kind of a ‘blood will run in the streets’ thing, imagining that the commitment to ‘rule of law’ by the good citizens of Utah may come to an end over this issue. I just don’t think so, though. Maybe I’m optimistic, but I really think most folks will take this in stride.
I know that I’m not exactly objective here. Two of my closest friends on earth right now are a theatre director I’ve worked with frequently, and his husband, a superb actor who has appeared in several of my plays, with more to come in the future. They’ve adopted a wonderful little boy, cutest tyke on the planet, and are deliriously happy with him and each other. The boy calls one of them ‘Papa’ and one of them ‘Daddy.’ It works great, and they’re conscientious and caring parents, as good as any parents I know. These aren’t just people I work with professionally, or people I’m acquainted with. These are people I love.
I also have a nephew who’s a kind of Youtube celebrity. His marriage proposal is now up to over 11 million views, over 8,000 comments. He and his fiancee were on CNN this morning, talking about this week’s events. They’re wonderful guys, and I love them both dearly, and can’t wait for their actual wedding in February.
And I have more gay friends, many more, former students and current colleagues. I’ve spent my life in the theatre; I know a few gay people. My father was an opera singer, I grew up with gay people. Gayness isn’t weird or wrong or unnatural or foreign or odd to me. It’s just normal.
That’s what we’ve been seeing for days now. It’s become extraordinarily ordinary, remarkably unremarkable. We’re seeing all these very average looking people, ecstatically happy as they commit their lives together. Standing in line, in a snow storm, to commit their lives together. Utah is now
the 18th state in which gay marriage is equal. Mindblowing. Normal. Wonderful.