December 21st, 2013

When Judges Overturn the Will of the People

In the past week Utahns have produced a cacophony of emotions, with elation on one side and wailing and gnashing of teeth on the other. This rollercoaster of reaction was sparked by a pair of opinions issued from federal judges in Utah relating to marriage. In response to both, many critics have cried out that the judges overturned, and thus violated, the will of the people of Utah.

Let’s see if this is true.

The first ruling, Brown v. Buhman, was issued last week by Judge Waddoups in response to a lawsuit over Utah’s bigamy statute. While most bigamy statutes around the country aim to prevent fraud by prohibiting a person from marrying more than one spouse, Utah’s goes a step further by banning cohabitation with a person other than one’s spouse. This clause was introduced specifically to target polygamists, and was declared unconstitutional by the judge. Asked for comment on the ruling, Utah Governor Gary Herbert summarized a popular criticism of the ruling in saying:

I’m always a little concerned when we have decisions that change public policy by the courts. I’d much rather see decisions on social issues come from our Legislature representing the will of the people.

The second ruling, Kitchen v. Herbert, was delivered one week following the first and opined that Utah’s constitutional amendment—declaring that marriage is between a man and a woman—is unconstitutional by violating the 14th amendment to the U.S. Constitution. In issuing his opinion, Judge Robert Shelby wrote that “the Constitution protects the Plaintiffs’ fundamental rights, which include the right to marry and the right to have that marriage recognized by their government.” The criticism of this ruling has been similar to the first, and was similarly summarized by the Governor:

I am very disappointed an activist federal judge is attempting to override the will of the people of Utah.

The common thread between these two cases is the contention that federal judges have overturned the will of the people, and that they are usurping legislative authority in dictating law from the bench. Of course, the whole point of the judiciary is to serve as a check against the legislature and, where necessary, invalidate its mandates when they violate somebody’s rights.

A corollary point should be made here—saying that the “will of the people of Utah” has been overridden is wildly inaccurate. There is no monolithic entity known as “the people.” Rather, Utah is made up of diverse people with wildly disparate political views and personal interests. Even when these people vote on something directly, or indirectly through the legislature, there is no single will. At a bare minimum there are two—the majority and the minority. Thus, the governor (and those of like mind) should be citing not the will of the people, but the will of the majority of the people.

And, of course, it is never ideal to let the majority do whatever they want simply because they are the majority. Last I checked, championing the actions of a mob was not a good thing. To the extent that the mob’s actions violate the will of the dissenting minority, then we shouldn’t stand idly by, let alone cheer on the mob’s continued oppression.

So the real question here is whether the laws that were struck down were in fact violating the rights of the minority—that alone is the pertinent point of discussion, rather than the percentage of voters who introduced these laws to begin with.

In the same-sex marriage ruling, the judge claimed that individuals have a “fundamental right” to government-sanctioned and -regulated marriage. In effect, he argues that we have the right to a government permission slip for our personal relationships. I fail to see how this is true, as it defies comprehension that participation in a government process, and the benefits that have been legislatively associated with that process, is a “fundamental right.”

In contrast, the polygamy ruling claims that “no ‘fundamental right’ exists to have official State recognition of legitimation of individuals’ ‘purported’ polygamous marriages…” This profound conflict in judicial opinions between two forms of “alternative” marriage, as it relates to state acceptance thereof, must be resolved if either is to be declared The Truth.

The Supreme Court has previously defined a fundamental right as something “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Ironically, polygamy fits this description far better than same-sex marriage, and yet the judges in either case had reversed opinions on the matter.

Do people have a fundamental right to marry? Yes and no, depending on your definition of the term. You and I do not have the fundamental right to obtain a government permission slip. We do, however, have the right to associate with those whom we choose, be they co-workers, friends, political associates, lovers, or otherwise.

Based on this actual fundamental right, the polygamy ruling is correct while the same-sex marriage ruling is not. Plaintiffs in the former were a polygamous family threatened with investigation and prosecution for speaking out about their lifestyle, who were considered felons under Utah law for merely cohabiting peacefully with one another. No such threat of punishment exists in Utah for same-sex couples after 2003’s Lawrence case invalidated Utah’s sodomy statute. Accordingly, the fundamental rights of Kody Brown and his wives were being denied them by the majority, whereas same-sex couples cannot claim the same violation in their case. Though they desire to have increased societal legitimacy and claim inequality under the law when denied their own marriage licenses, this is not a fundamental rights issue.

It is unproductive and quite silly to cry foul whenever a judge invalidates something that the majority of people prefer. We should instead discuss and analyze the underlying arguments and principles involved in the case instead of merely siding with the mob. As it relates to marriage, the issue should be taken out of the mob’s hands altogether, such that the ebb and flow of political power may no longer mess with such a personal and sacred relationship.

15 Responses to “When Judges Overturn the Will of the People”

  1. Jared Clark
    December 21, 2013 at 7:46 pm #

    Let’s have a discussion clarifying the following statement: “Of course, the whole point of the judiciary is to serve as a check against the legislature and, where necessary, invalidate its mandates when they violate somebody’s rights.” Where is the judiciary supposed to look to determine what are rights and what are not, so that they can protect the rights of (and not the mere passing whims of) the minority? Where do they ACTUALLY look? What if legislatures are regularly passing legislation concerning “rights” which are not found in the state or U.S. constitutions? What effect does this have on the role of the judicial in relation to the legislative branch? What is the solution that will bring consistency and carry a moral force of law, and not just an unpredictable fancy for one thing over another? I think the answers to these questions will lead us to the libertarian point of view — in diverse society there is no “liberty for all” except with a limited government.

  2. JR Peterson
    December 21, 2013 at 9:14 pm #

    Loved this write up. I’ve already shared it with a couple disgruntled Utahns and will continue to reference it as more thoughts and questions come up.

    P.S. – I can tell you love your job. I’m very glad you do. 🙂

  3. Kumozarusan
    December 22, 2013 at 1:36 am #

    Giving government the “authority” or “power” to decide what is and is not a state sanctioned or “officially recognized” marriage in the eyes of the state is in effect giving the state the power to establish a religion, or something very near it, or in the very least makes laws respecting the establishment of religion. It is also giving the state the power to prohibit the people and religious groups from practicing their religion freely. In other words, giving government the authority to officially sanction marriage by requiring marriage licenses is giving government the power to define what is and what is not a marriage, a religious belief, telling religions and religious individuals what they must accept and not accept as a religion. It also allows some, or a chosen group the free exercise of their religion while denying it to others.

    Giving government this power in effect allows government to tell each individual what is and what is not a “marriage,” even contrary to the individual’s religious beliefs, and everyone must now officially recognize a specific union as a “marriage” which the government has recognized as a “marriage,” in effect telling people what to believe religiously or what they can and cannot believe and practice religiously.

    Thus, government is making laws respecting the establishment of a religion, creating its own “government religion,” or in the very least its own “government religious tennets”, and is forcing everyone to recognize it and adhere to it. So giving government this power not only violates property rights, contract rights, and the right to free association, but it also violates our First Amendment rights in the two ways the First Amendment protects our religious rights: it allows government to dictate religious matters to individuals contrary to their religious beliefs, AKA it establishes a state religion or something very close to it, and at the same time it prevents people from practicing their religion freely.

    Thus, keeping government in marriage by allowing it to define what marriage is, recognize/sanction “marriages” as official, and/or require state marriage licenses is an assault on all of our First Amendment rights.

    Therefore, there is no such thing as a “fundamental right” to have one’s “marriage” officially recognized by the government, contrary to Judge Robert Shelby’s opinion, because such a “right” naturally violates many of our other rights, including our First Amendment rights. If Satan cannot cast out Satan, according to Christ himself, then logically an alleged “right” cannot destroy our other rights, as Judge Shelby has illogically claimed.

    Getting government OUT of the marriage equation altogether and reigning in anti-discrimination laws from applying to privately owned businesses, institutions, and private individuals is the ONLY solution to this problem. But will people even have the intelligence and decency to entertain these suggestions and not strike them down from the beginning as untenable or impracticable?

  4. Clumpy
    December 22, 2013 at 6:53 pm #

    I often hear libertarians making the argument you have above, and while I think I agree with pretty much everything you’ve said about the judicial/legislative process and the role of the “people’s” varied voice in determining law, I think there’s one aspect to the argument that I find troubling.

    What I’m referring to is the following: The argument that a group deserves access to some status that another group already has access to, but that government should not provide that access, serves to basically perpetuate the status quo. In this case, the argument against a “permission slip” for gay couples, and the rights associated with it, without accompanying rigorous campaigning against state-sanctioned marriage in the first place.

    The end result seems to be (and I’m not saying that you intend this because I don’t think you do, but some do) an argument which allows one to continue to support differential government treatment of ONE group without leaving the maker of the argument susceptible to charges that they’ve abandoned libertarian principles (not that the neocon infiltration into libertarianism isn’t thorough enough that this is much of a problem anyway). The purest libertarians I know tend to have a thoroughly-constructed political code they adhere to, and that purity of ideology underlies all of those committed to the movement to some extent, so I can understand the desire not to give any ground to a perceived totalitarian federal government. On the other hand, the priorities in this and a few other issues seem a little skewed—the willingness to perpetuate a state-sponsored inequality rather than give some tiny amount of ground somewhere for equal treatment under the law somewhere else. I feel you follow this stuff much more closely than I do, and have a better grasp on the specifics of the issue, so please read this as a general statement of frustration at our messaging on this issue as a society if I’ve missed something huge. Until then, I feel the absence of rigorous campaigning against state-sponsored marriage on the part of the liberty movement masks some hidden priorities they’d never admit to.

  5. iimx
    December 22, 2013 at 7:27 pm #

    There are some that believe that the story of the Centurion in Matthew 8 is about a gay man and his partner. Jesus healing the partner is on many levels an acknowledgment of the legitimacy of his relationship. Maybe he recognized the value of validation of a committed relationship.

  6. Andrew
    December 23, 2013 at 1:16 pm #

    Thanks again Connor for keeping the emotional issues at check and reminding us that the State is the real problem here.

  7. Lowell Nelson
    December 23, 2013 at 1:40 pm #

    Utah is (supposed to be) a sovereign state. And we should act sovereign.

    Utah defined marriage as the traditional union between one man and one woman. And enshrined this in its constitution. REGARDLESS of what some federal judge says. Yes, REGARDLESS.

    The feds have NO authority to tell Utah what to do in this (domestic) matter. NONE. Do NOT fall for the mistaken notion that federal authority trumps state authority.

    The states ratified the US Constitution, which vests specific, enumerated, limited authority in a central government. NO WAY does the constitution authorize the central government to trump state authority in this matter. NO WAY.

    County clerks throughout Utah should obey the Utah Constitution. They may NOT issue marriage licenses to couples of the same sex. And doing so should subject them to civil and/or criminal penalties. We have a constitution for a reason. And to IT the officers of government should adhere.

    Governor Herbert should reach out to county clerks throughout the state and admonish them to obey the constitution!

  8. Tom Grover
    December 27, 2013 at 10:04 am #

    Connor continues to advocate for the complete abolition of the legal institution of marriage, favoring contracts between parties. Aside from being impractical, costly and burdensome, Connor continues to fail to compensate for the many crucial marital rights that cannot be achieved through contract law (ie, spousal immunity, various probate rights, guardianship rights, etc). Under Connor’s proposal, these rights will simply cease to exist, an outcome that benefits literally no one, but harms families and society.

    The rights that accrue through marriage protect the economic, privacy and civil liberty interests of the parties to the marriage and their entire family. Abolishing marriage is a horrible idea that will destabilize society and harm families.

  9. iimx
    December 28, 2013 at 3:15 pm #

    Tom, Great point. Wouldn’t abolishing marriage legally be effectively issuing a divorce to people already married? Unless there was a phase out period when nobody after a certain date can be married legally. It would be a pain to legally recreate an equal bundle of legal rights currently associated with marriage, under contract law.

    I also don’t see the purpose of wanting to do so, other than avoiding any recognition of marriages not approved by the LDS faith. There is something confusing for me, and only connor can answer. His article seems to support plural marriages which are not currently recognized by the LDS faith, but ONCE were. I don’t know if there is something on the horizon for the LDS church in relating to plural marriage.

  10. Shoal Creek
    January 6, 2014 at 9:05 am #

    iimx, aboloshing the legal institution does not abolish marriage itself. Marriage, in many states in the 1700’s, was completely personal and/or religious in nature (see Benjamin Franklin’s autobiography to see what Ben Franklin did when he got married–no government was involved at all). Before the state existed, marriage was an institution of personal belief, religion, and commitment.

    If Judge Shelby’s ruling stands, this implicitly defines marriage as a right. According to the Supreme Court ruling on poll taxes, rights cannot be taxed or licensed. So, if rights cannot be taxed or licensed and marriage is now a right, does that mean that marriage licenses and marriage license fees are now unconstitutional? Likewise, wouldn’t any income tax provision that leads to a marriage penalty on income taxes also be a violation of my rights?

  11. iimx
    January 7, 2014 at 7:17 pm #

    Shoal Creek,
    If I understand the story correctly, Deborah Read was still legally married to John Rodgers when she started a Common law marriage to Benjamin Franklin. John Rodgers apparently abandoned her. Common law marriages may start simply as cohabitation, and the partners may or may not consider themselves bound to each other. Its misleading to say that because Ben’s marriage was informal, that formal legally recognized marriages with a public ceremony was not available. He made a formal proposal at the Read home, but her mother did not approve.

    Interesting topic as it relates to taxes and rights. Will be interesting to learn more.

  12. jpv
    January 14, 2014 at 12:58 am #

    What I love about this ruling is it exposes statism and the BS conservative refrain that government is okay if we “just vote for the right people” everything will work out.

  13. jasper
    February 13, 2014 at 2:35 am #

    Soooo….no majority rule,,,,,no minority rule……but rather a judge or one man rule based on his singular opinion or desire ?? That sir would be a dictatorship… are sheep

  14. rob
    August 21, 2014 at 7:51 pm #

    what a judge rules only stands if there are enough people willing to in force it.

  15. Korama
    June 28, 2016 at 7:34 pm #

    jasper: Actually, we are ruled by some piece of paper written over two hundred years ago by a bunch of founding fathers. The judges are just there to make sure of that.

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