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Judicial tyranny

The essence of judicial tyranny is when a single, unelected federal judge declares the laws and constitution of an entire state null and void with an opinion clothed in the barest of legal precedent.

Late on Friday afternoon, U.S. District Judge Robert J. Shelby overstepped judicial bounds, ignored the weight of settled precedent and insulted Utah’s electorate by striking down Amendment 3 to Utah’s Constitution, the provision that defines marriage as between one man and one woman.


How marriage is defined in American society is admittedly one of the great legal and political contests of our day. But in that contest, one would hope for fair play. Friday’s decision was made without the benefit of a trial. Acting on a motion for summary judgment, the decision rests on one judge’s creative interpretation of precedent.

Results-driven creativity from trial courts is nothing new. But given the complex legal and practical consequences associated with this decision, it was utterly irresponsible for Judge Shelby to not simultaneously stay the enforcement of his decision pending the benefit of appellate review.

Efforts to overturn the constitution of a state must involve greater care and deference than pre-trial proceedings. Such a decision, subject to full substantive review by an appellate court, should prudently preserve the status quo until that review is complete.

That would seem to apply even more forcefully in a review of how Utah defines marriage given that the enabling act that permitted Utah to join the union in 1896 specified that our state adopt constitutionally a traditional definition of marriage.

Ignoring precedent

The suit, filed in March by three gay and lesbian couples — including one whose same-gender marriage was performed in Iowa — gained steam after the Supreme Court struck down the Defense of Marriage Act in June.

That Supreme Court decision, Windsor v. U.S., dealt with the federal definition of marriage.

The Windsor case, however, pointedly did not impact state laws defining marriage.

Indeed, in the Windsor case, Justice Anthony Kennedy, writing for the court, reasoned that “the tradition of recognizing and accepting state definitions of marriage” was a central plank in the Supreme Court’s decision that the federal government could not, through the Defense of Marriage Act, undercut the state of New York’s definition of marriage.

Instead of relying on the reasoning and clear language from the majority opinion from the Supreme Court, Shelby’s opinion relies on Justice Antonin Scalia’s sardonic dissent – which has no precedential value.

And instead of following the one Supreme Court case that has dealt squarely with a constitutional challenge to a state’s prohibition against same-sex marriage (Baker v. Nelson), Shelby’s opinion creatively stitches together “doctrinal developments” to ignore what arguably should bind this lowest of federal courts.

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.

Ignoring rational arguments

Furthermore, the decision’s approach to the application of federal equal protection standards takes a remarkably condescending tone toward Utah’s Constitution. Admitting that a strong presumption in favor of constitutionality should apply, the decision goes on to say there is no rational basis for Utah’s Amendment 3.

It deems Amendment 3 to be an act of “sex discrimination” even though there is no difference between the way men and women are treated under Utah marriage law.

It entertains the argument that “Utah citizens voted for Amendment 3 out of a dislike of gay and lesbian individuals.”

Because this was decided without the benefit of a trial of the facts, the court feels free to dismiss as irrational the state’s contention (and by extension the voters’ contention) that there are prudential reasons for moving cautiously when adjusting the marital norms that have served society for millennia, that there may be something uniquely important for the benefit of children about supporting the biologically intact family, that religious liberties might require special consideration given the role of marriage in religious teaching and practice.

Gays and lesbians are not deprived of any rights they are due in a liberal democracy when a state, like Utah, through open democratic processes insists that marriage is between a man and a woman.

The Utah Attorney General’s Office said it would seek an “emergency stay pending the filing of an appeal.”

In order to maintain legitimacy, unelected judges must demonstrate that they are acting with prudence, discretion and with proper regard to the fabric of our state’s and our nation’s tradition of ordered liberty, their fundamental laws, their constitutions and the settled precedents that enforce them. In our opinion, Friday’s decision to redefine marriage in Utah has failed to maintain this trust.