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Can Utah Get Out of the Marriage Business?


Steve T.

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http://www.addictinginfo.org/2015/06/28/utah-republicans-draft-bill-to-get-rid-of-all-marriages-to-prevent-gay-marriage/

In Utah, the Republicans plan to stop gays from marrying by refusing to marry ANYONE.  This is a pretty spiteful tactic, if you ask me, but will it work?

In newly proposed legislation, they plan to stop all government agencies from issuing marriage licenses.  In effect, this would mean that no one could be legally married in the state of Utah from now on.  How is that going to work out?

The first problem I see is that they would have to do away with all of the 1100+ benefits afforded to married couples.  No automatic tax-free inheritance.  No more filing of joint income tax returns.  No medical decisions for one's spouse without a power of attorney.  Because if they allow those things for those who are already married, but deny them to anyone who wasn't married before this law took effect, they would find themselves in violation of the 14th amendment.  And it wouldn't only be gay couples that could object, it would affect straight couples wanting to marry too.

Some have proposed turning over marriage to only the clergy, but without the license from the state, it would be legally meaningless.  
 

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I am not sure how something like this can or would work. The Supreme Court just ruled that marriage is a constitutional right of all Americans. So for a state to turn around and then stop all marriages would be to deny that right to all of their citizens. Just does not seem plausible to me. But, some people can be pretty damn petty. I would hazard a guess that if they actually pulled this off, they would face riots and a mass recall effort to remove every politician that voted for such an action, once the full impact of their action hit the general public, such as the loss of the 1100 rights afforded to married couples.

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The Supreme Court just ruled that marriage is a constitutional right of all Americans.

Actually, my understanding (albeit, a limited one) isn't that they ruled that marriage is a constitutional right.  (That's obvious just reading the constitution!)  They ruled that discriminating on who could receive that right based on their belonging to a given category was unconstitutional.

The relevant text is:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis added)

 

Marriage is not a right.  But denying someone the right to marriage -- to the 'equal protection' of the laws tied to marriage -- is unconstitutional.  Now, if being gay was still a crime they could back door that with 'due process of law', but as is, this is their only remaining option.  It's just... one that's too expensive to believe they'd really try.

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Oh, but it's not over. Texas is getting into the act. http://www.slate.com/blogs/outward/2015/06/29/texas_attorney_general_encourages_clerks_to_refuse_marriage_licenses_to.html

 

Their AG is saying that civic clerks can refuse to issue licenses on personal religious grounds and that the State will help them, if they are sued.

 

And North Carolina, last Thursday, the day before the SCOTUS decision came out, overrode a veto to pass a law that allows magistrates and clerks to "opt out" on personal religious grounds.

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As a native Utahn (Unfortunately) I can definitely see them trying, but I also know that they'll fail. The majority of people in this state now just want the battle to be over. I talk to these people every day, and most are accepting of the verdict and ready to move on. Doesn't mean that the politicians are, of course, or the LDS(Mormon) church, but I really don't think this will go anywhere significant.

 

Next time I see Derek Kitchen our Moudi Sbeity(One of the plaintiff couples for the original case in Utah) I'll ask them what they think about it. They're friends of mine, although not close ones as of yet. :) But really I think they're just blowing smoke.

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As Alan pointed out above, some of these conservative states aren't giving up yet.

 

http://www.queerty.com/bobby-jindal-invites-state-employees-to-sue-him-over-marriage-faces-unexpected-gop-challenger-20150630?utm_source=Queerty+Subscribers&utm_campaign=e70c420aa7-20150630_Queerty_Newsletter&utm_medium=email&utm_term=0_221c27272a-e70c420aa7-428250561

 

Bobby Jindal has signed an executive order stating that any government official (county clerk, judge, justice of the peace) who doesn't want to comply with the SCOTUS ruling due to "sincerely held religious beliefs" doesn't have to, and will face no disciplinary action from the state as a result of refusing to do his/her job.  He states that no one will be forced to issue licenses and if none of them will, oh well, too bad.  He also said that if any of these folks are sued, he has a stable of lawyers willing to represent them pro bono.

 

My opinion?  These people will NEVER give up on this.  There is no such thing as "settled law" when a conservative is unsatisfied with the decision.

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This is just my impression, not real clear on the legal aspects. These actions will end up back in the courts. They will lose on the fact that as government officials, regardless of your religion, have to uphold the laws. In the government job you are acting as an agent of the government and not as a private citizen. It seems to me this is all stalling tactics. Tactics that I think will harm the Republican party long term. As stated in a previous post, they really need to just let it go now and stop acting like little 2 year olds.

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I have heard by word of mouth but don't know if it is true; Tennessee is considering legislature to protect clergy who do not wish to perform the marriages. This I can agree with but if you are a government official you need to obey the law or resign if it goes against your religion.

 

 

BTW I am a conservative Republican . . . . . well mostly. :) 

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Jeikor

 

Tennessee is one of several states working on similar legislation.

 

http://www.tennessean.com/story/news/politics/2015/06/26/gop-lawmakers-bill-protects-clergy-from-performing-same-sex-marriages/29338013/

 

It's also completely unnecessary.  The first amendment already guarantees clergy that right to deny any couple a marriage, for any reason.  It's always been that way, and Friday's ruling didn't change that. 

 

But, like you said, if someone is a government official, they need to either do their job, or resign.  I've been a nurse for going on 30 years.  If I were to refuse to care for a patient, and cited my religious beliefs, I'd be out of a job.  Government employees shouldn't get a pass to discriminate against anyone no matter what beliefs they hold personally.

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Is anyone else feeling like the religious right are the ones who are now going out of their way to get special rights? I find it kind of interesting that they keep arguing that we want and are seeking special rights. Here they are going after and seeking extra protections against something they are already protected and exempted from. Now they want to say those exemptions./protections should expand beyond the pastor/church and include private citizens.

 

If you look back to Loving v. Virginia, claims were made that churches would be forced to perform interracial marriages. Overtime most churches came around. But there are still churches today that will not perform interracial marriages. No one is raising a stink about it. In time the same is likely to be true in this case. I really wish more people would stop and think for themselves and question things and explore/learn for themselves rather than be spoon feed crap. Wishful thinking, I know.

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Okay, so... My response is in regard to the original question. Although I think it was already answered.

 

Can they really refuse to issue marriage certificates to ANYONE...

 

Sure they can as long as they don't issue them to anyone at all.  But this doesn't do them any good as they now have to recognize marriages issued in other states anyways.  So all this really does is loose them money.  It is a foolish endeavor.

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Can they really refuse to issue marriage certificates to ANYONE...

 

Here's the way it works under the rule of law: Licenses to Marry are subject to qualifications, which can very from State to State. But once the qualifications are met, they must be issued (generally, a States law will read, "shall issue"). This only gives a State actor so much lee-way. If the qualifications are met, the actor has no choice but to issue the license.

 

The Supreme Court has taken same-sex off the table as a qualifier.

 

The Supreme Court did say that the 1st amendment religious qualifier does appy. But here, that qualifier only works if you are clergy and performing a marriage as part of a religious rite.

 

The idea that your firm religious belief against same-sex marriage has some sway, while performing your work as a State actor, does not work. You must perform as a State actor and issue the license, assuming that there are no statutory disqualifiers. This also holds true for those authorized by the State to actually perform the marriage (clerks, magistrates, judges, mayors, etc). Only a minister/clergy can make that 1st amendment argument.

 

And here is where it gets sticky.

 

It's going to happen. A State actor is going to refuse to issue and/or marry. The recourse to individuals, is to sue in Federal District Court (not State Court) on a civil rights violation. This will take anywhere between 6 months to 2 years. Once the case is settled (assuming the losing party doesn't appeal), the court will direct the State agency to issue. If appealed, add another 2 years to the case.

 

It is unfortunate, but this is what we will see. A State by State attack, until it reaches Circuit Court by Circuit Court.

 

Life, as such, in legal lane.

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Let the religious Conservatives throw their temper tantrums, let then cry and wine and stamp their feet. They have no legal standing here. In my opinion this is just another Nail in the GOP's coffin. They have so completely married themselves to the religious right they can never wash away the stains. More and more people are seeing the ridiculousness of the GOP's political stance. I remember when Democrats where embarrassed to admit they were democrats. Now since we left that proverbial closet empty the Conservatives are filling it rapidly.

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There has been talk of three political parties. I think this issue may be what finally causes a break between more moderate Republicans and those on the far right. Along with some of the problems between moderate Democrats and those on the far left we might see some of them join in to make a more moderate party willing to work together to get business done in Congress once again.

 

Some of the ones running for the Republican nomination might as well quit now because with some of their statements they cannot win. I am trying to watch closely to see if I can support any of them. 

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I would like to see multiple political parties, maybe even more than three.  I think it would be beneficial if there more, so that one party never had a clear majority that could dictate what a particular chamber was going to do.  It would force members from different parties to actually work together to get anything done.

 

In order for that to happen, I think it needs to start at more local level and then build to a national level.  It would probably take decades, but I don't see it happening any other way.

 

Personally, I see the Republican party ripe for a split.  The Tea Party could separate themselves from the moderate Republicans (if there are any left) and form their own party.  Politically, I don't see it making much difference right now as they both seem to agree on so much...namely make sure this President doesn't get any credit for anything going right.

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I would like to see multiple political parties, maybe even more than three.  I think it would be beneficial if there more, so that one party never had a clear majority that could dictate what a particular chamber was going to do.  It would force members from different parties to actually work together to get anything done.

Unfortunately, our political system is built to encourage two-party dualism.  Our founders wanted a no-party system, but human nature being human nature factions will form.  But any third faction will have to split off from the core two, and will inevitably loose the election, unable to carry enough of either party to make a difference.  Or, if it does successfully split out, it'll do so by driving another party out of existence.

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Rowan County (Kentucky) clerk of courts will face a judge on Monday for refusing to issue any marriage licenses in order to "not discriminate."  The suit was filed by 2 gay couples and 2 straight couples.

 

http://www.lgbtqnation.com/2015/07/kentucky-clerk-sued-for-not-issuing-marriage-licenses-to-same-sex-couples/

 

Governor Beshear (D) has ordered all county clerks to follow the law and issue licenses to any couple who meets the qualifications regardless of gender.  He's doing the right thing, even though he's personally opposed to same sex marriage.  When the ban was struck down and the Attorney General declined to appeal, he hired private lawyers to continue the fight. 

 

He has since added that clerks need to do their jobs or resign.  Another clerk, who met with Beshear yesterday said that he would not resign and would rather go to jail than issue licenses to gay couples.  I hope Beshear obliges him.  And the other one, too.

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Bottom line: If you are a State Actor (you are in a job that the Government pays you to do), you cannot refuse to do that job... Except by resigning.

 

That's pretty simple. At least to me. If your own religious scruples won't allow you to do the job for which you were hired, then quit. The rules have changed. I get that. But you are still required (usually by law) to do the job. Your Religious Freedom allows you to either quit, or do the job. You want to stand up for your "values"? Then resign your position.

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  • 3 weeks later...

What many other countries have done is formally separate legal and religious marriage.  Religious marriage can be performed by anyone, anywhere, according to the belief of those involved.  Legal marriage recognized by the government must be performed by someone with state magisterial authority to do so-judges, magistrates; in some places, clerks or the court or military authorities.  People in Spain and Japan regularly have religious marriage ceremonies and then appear before the appropriate state magistrate and at that time become LEGALLY married.  What is really happening in the US is that states grant magisterial authority to perform legal marriages to certain religious authorities, and one ceremony suffices for both religion and state.  We could easily separate the two, with only the legal marriage required for state recognition, and the state taking no notice of the religious ceremony or lack of one.  

And everyone here is correct:  if you will not or cannot perform basic duties of your job, then you cannot have that job.  If it is your job to issue licenses, then you must issue them to all who legally qualify for those licenses.  If your religion forbids it, then it is your religion that is limiting your job opportunities, NOT your job interfering with your religion!  You cannot claim a right to a job you will not do based on your First Amendment rights, how silly!

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By the way, the SCOTUS has stated in a couple of opinions that marriage IS a fundamental right, just like free speech and freedom of religion.  I think that is the real basis for the recent decision about same-sex marriage.  Some random government clerk does not get to decide whom you can marry any more than they can decide what church you can belong to.

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they could just make the clergy's marriage licence as legally binding as the state's, make it so that the church can do that without the state, not sure how don't really care but in theory if you have the $$$$ and the will there's always a way to do/get what you want. :P

 

They do that, then the church can say yay to straight and nay to homosexual....circumventing the SCOTUS and anything else they want. lol

 

Then hire a shitload of lawyers for the shitstorm of lawsuits they will receive. lol

 

and now that the devil's advocate has been played, why can't ppl live well enough alone and accept what's different?

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