Clueless AG Office lawyers opened door for Shelby’s specious ruling

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

Four days is a long time for me to be silent about the “gay marriage” ruling in Utah. I’ve thought through this, read Judge Shelby’s opinion legalizing “gay marriage,” and now I have a few thoughts to share.

First, in one week’s time, the state of New Mexico legalized “gay marriage,” the Canadian Supreme Court unanimously legalized prostitution, and two federal judges over Utah have, respectively, decriminalized polygamy and lectured the vast majority of Utahns about why our legal definition of marriage is unconstitutional. What a week for the politics of sexual radicals!

Second, state lawyers in the Utah Attorney General’s office have no clue what they’re defending when it comes to marriage and family. At every turn during the summary judgment hearing before Judge Shelby, state lawyers dismissed out of hand or refused to answer relevant case questions. Not that Judge Shelby was going to take their word – he wasn’t. Shelby is an Obama appointee and clearly already had made up his mind. But when a federal judge asks you to respond to the radical lesbian attorney’s wild claims and all the state lawyers do is punt, that’s inept.

State attorneys, like most uninterested government lawyers on any matter out of their comfort zone, settled on a narrow strategy to simply argue that marriage law is state law. Well, again, thanks to their ineptness, it’s not any longer.

Third, much like Judge Waddoups decision in the polygamy case, the opinion delivered by Judge Shelby is a complete fabrication of the United States Constitution. The fact that the Constitution can be amended doesn’t entitle a single federal court judge to amend it. Then again, Judge Shelby could have been just following the lead of state attorneys – if state attorneys didn’t have a rational response as to why the legal definition of marriage shouldn’t change, then why should he help them out?

But it gets worse. Judge Shelby actually has the audacity to build straw men out of whole cloth to knock down arguments of his own making. He centers his entire opinion on the belief that state attorneys were arguing that two men getting married would actually reduce the number of heterosexual marriages. What? No, it’s true. Shelby goes on to explain why that idea is irrational and, hence, why Amendment 3 is irrational. Folks, in nearly 30 years of working on these issues I have never heard anyone on our side make such a stupid argument. I’ve heard homosexual activists make that argument, as did Judge Shelby – trying to put words in our mouth – but never have I heard our side argue that “gay marriage” somehow reduces the likelihood that heterosexuals will marry.

And speaking of audacity, Judge Shelby actually tries to justify his opinion on the back of Justice Antonin Scalia’s dissent in two other Supreme Court cases, including the recent Defense of Marriage Act case. When Justice Scalia criticizes the slim majority’s opinion and slams that opinion for using language that would obviously bias future court cases, like ours in Utah, Judge Shelby says, “See, even Justice Scalia knew what was coming!”

This Shelby ruling on “gay marriage” in Utah was about as specious and manipulative in logic and constitutional understanding as any court opinion I’ve heard of since Roe v. Wade. Fortunately, the 10th Circuit Court of Appeals will overturn this idiotic opinion – that is, only if the state of Utah hires competent counsel to explain the state interest in the legal definition of marriage as between a man and a woman.

For Sutherland Institute, I’m Paul Mero. Thanks for listening.

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