As Utah Goes

I can’t say I saw that coming.

Over the past year or two, during which it has become more or less inevitable that gay marriage will eventually be the law of the land, I have wondered which of America’s 50 states will be the final holdout against the sanctioning of same-sex matrimony, and in what year that final domino will fall.

While Alabama and South Carolina are arguably the most surefire bets on this front—they were the last two states to remove miscegenation bans from their state constitutions—the state of Utah could easily have stood at or near the top of anyone’s list.

After all, Utah is unquestionably one of the most conservative members of the union.  The Mormon Church, which more or less runs the place, contributed millions in favor of California’s Proposition 8, which outlawed gay marriage in that state in 2008.  (The law has since been overturned.)  Four years prior, Utah voters endorsed a similar ban for themselves by a 2:1 margin.  A 2011 survey found that only 27 percent of Utahans think gay marriage is a good idea.

And yet gay marriage is now legal in the Beehive State, following last Friday’s ruling by the U.S. District Court, which declared the 2004 ban unconstitutional on the grounds that “it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution”—language borrowed from the U.S. Supreme Court decision in June that struck down Section 3 of the Defense of Marriage Act.

While the ruling will undoubtedly be subject to lengthy legal pushback, initial appeals have been rejected.  Thus, for the time being, gay marriage in Utah is here to stay.  Who’d a-thunk?

To be sure, this was a decision made in clear opposition to the will of the public and most of their elected representatives.  Were the marriage question left up to them, last Friday’s surprise would not have occurred and marriage would likely have remained a strictly heterosexual affair for decades to come.

And so we must revisit the ancient, yet indispensible, question:  Is this how things ought to be?  Is it right that, on a major issue like the right to marry, the opinion of a supermajority of the people can be overruled by a single judge?

Courts have ruled on same-sex marriage before—not least in Massachusetts, the commonwealth where it all began.  In the intervening decade, state supreme courts have issued similar rulings in California, Connecticut, Iowa, New Jersey and New Mexico.

The difference with the Utah case is twofold.  First, unlike the above, Utah was made to issue marriage licenses to same-sex couples by a federal court, rather than a state one.  As such, those who oppose gay marriage have suffered a perfect storm of all they detest.  In their view, the Utah decision marks not only an encroachment by the judiciary on what ought to be left to the legislature, but also an encroachment by the federal government on what ought to be left to the individual states.  What could possibly be more repulsive than that?

Perhaps even more noteworthy, however, is the aforementioned fact of Utah’s exceptional conservatism standing alongside the ostensible liberalism of this ruling.

While it happened that locales like Massachusetts and Connecticut became gay-friendly through judicial means, such events were only slightly divergent from—if not in concert with—the sentiments of the public at the time.  In Utah, this was plainly not the case.

Accordingly, one can understand the annoyance of those who view this as a gross injustice and a perversion of the democratic process.  Why should Utah be saddled with a policy that most of its citizens heartily do not want?

But then I am reminded of the scene in Gus Van Sant’s Milk in which the movie’s hero, Harvey Milk, receives a phone call from a semi-closeted young man in Minnesota whose life has been made a living hell by his backward parents in his backward home town.  Milk’s advice for this kid is to get the hell out of Minnesota as fast as he possibly can.  “I can’t,” the boy responds, “I can’t walk, sir.”  And the camera pulls back to reveal the wheelchair in which he sits.

Gay people exist everywhere, you see, and not all of them have the desire or ability to relocate to areas of the country in which they are most welcome.

Sometimes the role of the state is to protect minorities from majority rule, if it has been judged that the latter is trampling upon the rights of the former.

Sometimes the principle of state sovereignty is not as important as the principle of ensuring equal protection for every individual living in a particular state, regardless of whether anyone else in that state thinks they deserve such protection in the first place.

Some things are not for us, the people, to decide.

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