Lost in the moral hubbub is that marriage is also a legal contract between consenting individuals. In case one of us is incapacitated or dies, my wife and I have rights of survivorship, power of attorney, bank accounts, and all of the rest of the accoutrements of a legal marriage. When we married no one said anything like the sole reason for our union was for procreation, or that both of us had to raise our child. It worked out that way, but it wasn’t in any contract I saw. We had a civil ceremony in front of a judge. There were no religious overtones at all, nor should there have been. I cannot think of a solitary reason that a same sex couple should not be able to marry and make a legal contract like ours.
But just as with the original December ruling by Judge Shelby against Utah's discriminatory law, the 10th Circuit Court’s decision affirming Shelby as correct, the State of Utah, in the persons of Governor Gary Herbert and Attorney General Sean Reyes, have vowed to fight all the way to the Supreme Court. In the months since Shelby’s ruling 18 other states have had federal judges give the same answer to those states with laws that discriminate. The Fourteenth Amendment trumps all. No state can pass and enforce a law that picks out a particular group for legal discrimination.
My bet is that the Supreme Court will have to affirm what so many federal judges have already ruled. Or if the high court wants to chicken out, they can choose not to hear the case, but to let the lower court judges’ rulings stand.
I have spoken of governors who fight against this tide of the twenty-first century’s civil rights battle as being on the wrong side of history. Yesterday a columnist for the Salt Lake Tribune, Scott D. Pierce, wrote a column with a similar theme.
In harkening back to the sixties’ civil rights fights, Pierce quotes former Mississippi governor Ross Barnett as saying, “God was the original segregationist. He made the white man white and the black man black, and he did not intend for them to mix.” (I am always amazed at how many governors imply they have God on their speed-dial so God can tell the governor exactly what he wants to hear.)
Pierce goes on to include Governor Herbert as someone who reacts like Barnett. From Pierce’s column:
“The tone may have been different, but the message was the same five decades later when Herbert responded to a federal court striking Utah's ban on same-sex marriage.
“Decades from now, clips of his public statements will be part of documentaries about his fight for gay rights. Viewers’ jaws will drop when they hear him say that governors and attorneys general who choose not to defend their state's same sex marriage bans were taking ‘the next step toward anarchy.’ Future documentarians will salivate when they come across the clip of Herbert saying, ‘What you choose to do with your sexual orientation is different in my mind than what you’re born with as far as your race.’
“Viewers will cringe, Herbert’s children, grandchildren and great-grandchildren will be embarrassed. In those future documentaries, Utah will play the part of Mississippi in the 1960s — a backward state whose elected officals fought to deny many of its citizens basic rights.
“Herbert will be remembered, but not in the way he hopes.”