Tenth Circuit Court Dismantles Religious Right Marriage Equality Claims in Utah

We’ve heard all the arguments, that marriage equality will destroy so-called “traditional” marriage. Tim Huelskamp (R-KS), the man who put the fool in April Fool’s Day, just last week told CNSNews that marriage equality will destroy not only traditional marriage but the family as well:

The mechanism of this destruction is not explained. Somehow, if gay people get married, straight people will not be able to. It’s some sort of alchemy understood only by the Religious Right. We are apparently just supposed to trust them on this.

We are also told that marriage equality is an attack on religious freedom, that religious freedom is somehow denying to others rights you yourself enjoy. Another bit of twisted logic only the Religious Right understands. But the courts are not fooled as marriage bans are struck down in state after state.

Yesterday, the Tenth Circuit Court by a 2 – 1 decision dismantled – not struck down but dismantled – Utah’s ban on marriage equality, specifically addressing claims based on ideas of religious freedom (PDF):

Appellants’ fourth and final justification for Amendment 3, “accommodating religious freedom and reducing the potential for civic strife,” fails for reasons independent of the foregoing. Appellants contend that a prohibition on same-sex marriage “is essential to preserving social harmony in the State” and that allowing same-sex couples to marry “would create the potential for religion-related strife.”

Even assuming that appellants are correct in predicting that some substantial degree of discord will follow state recognition of same-sex marriage, the Supreme Court has repeated held that public opposition cannot provide cover for a violation of fundamental rights.

So whether you want them to or not, other people have the same rights you do. That anyone can argue with this assertion in the face of the Declaration’s preamble that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” beggars belief.

Appellants acknowledge that a state may not “invoke concerns about religious freedom or religion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution.” But they argue that the social and religious strife argument qualifies as legitimate because a fundamental right is not at issue in this case. Because we have rejected appellants’ contention on this point, their fourth justification necessarily fails.

We also emphasize, as did the district court, that today’s decision relates solely to civil marriage. See Kitchen, 961 F. Supp. 2d at 1214 (“[T]he court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage.”). Plaintiffs must be accorded the same legal status presently granted to married couples, but religious institutions remain as free as they always have been to practice their sacraments and traditions as they see fit.

This seems self-evident. Nobody is stopping people from enjoying “traditional” marriage. That can continue as long as hetero couples want to get married.

Another claim made is that traditional marriage has always been – through all of human history – as we find it now: one man + one woman. Ben Carson repeated this one the other day, saying that marriage equality is like insisting 2+2=5:

The Tenth Circuit Court kicked this one under the bus as well:

As the Court later explained, “[m]arriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia.”

The court reasonably pointed to the example of interracial marriage:

Appellants’ reliance on the modifier “definitional” does not serve a meaningful function in this context. To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so. One might just as easily have argued that interracial couples are by definition excluded from the institution of marriage. But “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” Lawrence, 539 U.S. at 577-78 (quotation omitted); see also Williams v. Illinois, 399 U.S. 235, 239 (1970) (“[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack . . . .”); In re Marriage Cases, 183 P.3d 384, 451 (Cal. 2008) (“[E]ven the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions.”), superseded by constitutional amendment as stated in Strauss v. Horton, 207 P.3d 48, 59 (Cal. 2009).

Tony Perkins for one says he is not going to be fooled by a liberally biased reality and a measly bunch of facts:

While disturbing, today’s rulings come as no surprise given the rising disdain for the rule of law promoted by the Obama administration. These latest rulings are not just about redefining marriage but they are a further attempt by the courts to untether our public policies from the democratic process, as well as the anthropological record.

Perkins continues to insist on the Religious Right’s own personal interpretation of “natural law” and judges who refuse to play along must necessarily be “black robed tyrants” and the Tenth Circuit a “rogue court.”

While judges can, by judicial fiat, declare same-sex ‘marriage’ legal, they will never be able to make it right. The courts, for all their power, can’t overturn natural law. What they can do is incite a movement of indignant Americans, who are tired of seeing the foundations of a free and just society destroyed by a handful of black-robed tyrants. The Left has long believed packing the federal courts with liberal jurists is the means of fulfilling a radical social agenda, as the American people refuse to endorse that agenda at the polls or through their elected representatives.

Talk about burying your head in a hole in the ground to avoid facts…

Perkins defiantly calls for civil disobedience for the right to deprive others of their rights:

The light of morality and freedom is being brutishly snuffed out right before our very eyes. It’s a national tragedy unfolding at an accelerating pace.

And this is not a good harbinger of things to come — unless our elected leaders and Christians defiantly rise up and engage in civil disobedience.

The Religious Right does not get it. They don’t get America. They don’t love America. They don’t even want America. They want a theocracy that was never meant to be, a theocracy the U.S. Constitution was written to make forever impossible on these shores.

The times they are a changing – the earth is no longer a flat disk and stars and planets are not fixed in the firmament and science explains the cosmos – but the Religious Right refuses to come along for the trip. The thirteenth century and demons and the right to persecute those who don’t agree with them is just too appealing a destination for patriarchal totalitarians.

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