The Shelby Decision

I’ve just gotten around to reading the Shelby decision (pdf) that struck down Amendment 3 in Utah. Judge Robert Shelby’s decision is worth a read if you have time for a 50 page document. It looks like the state of Utah trotted out all the usual arguments against same sex marriage, and Shelby knocked them down one after another.

For example, the argument from tradition:

Finally, the State contends that the fundamental right to marriage cannot encompass the right to marry someone of the same sex because this right has never been interpreted to have this meaning in the past. The court is not persuaded by the State’s argument. The Constitution is not so rigid that it always mandates the same outcome even when its principles operate on a new set of facts that were previously unknown …

Shelby argues that while the constitution has not changed, our understanding of homosexuality and same sex attraction has changed. And, “The court, and the State, must adapt to this changed understanding.”

Then there’s the argument that the state has an interest in promoting procreative marriages:

The State has presented no evidence that the number of opposite-sex couples choosing to marry each other is likely to be affected in any way by the ability of same-sex couples to marry. Indeed, it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Both opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support. If there is any connection between same-sex marriage and responsible procreation, the relationship is likely to be the opposite of what the State suggests.

The state provided no mechanism to explain why allowing same sex marriages to occur would harm opposite sex marriage, so this argument is a non-sequitur. In fact, allowing same sex marriages to go forward would seem to strengthen the cultural bias for committed relationships.

Finally, both sides bring out studies about the benefits of child rearing in same sex vs. opposite sex marriage. Judge Shelby acknowledges them, but pushes them aside:

To the extent the parties have created a factual dispute about the optimal environment for children, the court cannot resolve this dispute on motions for summary judgment. But the court need not engage in this debate because the State’s argument is unpersuasive for another reason. Once again, the State fails to demonstrate any rational link between its prohibition of same-sex marriage and its goal of having more children raised in the family structure the State wishes to promote.

Opposite sex marriage may be really spiffy, but what does that have to do with Amendment 3? How does preventing gay marriage strengthen or promote straight marriage? Does anyone really think that homosexuals will dump their same sex lovers and marry someone of the opposite sex because the state isn’t backing their committed relationship?

Anyway, the logic is well argued and the whole piece is straightforward and clear. And of course he name-checks Scalia a dozen times.

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