This reminds me of a point I thought about bringing up before (but then forgot). There are actually two completely separate questions that are going on with this train of thought: (a) Should laws be passed to enable gay marriages? (b) Is there a fundamental right to gay marriage? Default's sentiment is an argument for (a), but not for (b).
In my opinion, as I've strongly opined in this thread and elsewhere, (b) is invalid. There is no fundamental right to gay marriage (again, speaking about my own opinion). And nothing short of a Supreme Court decision will convince me otherwise. However, if the discussion were about (a), I'd be much more open. I'd still be against gay marriage, but I recognize that there are reasons for supporting it that fall short of "fundamental right", but which are compelling. Loggrad's story, for example. Hopefully I said that clearly enough, but let me try to restate. If a proposition for gay marriage were on a ballot here (Utah) like it was in California some years ago, I'd vote against it, but I'd be content to live with the outcome if my side were outvoted. It's the whole "courts overruling the will of the people because of some perceived civil right which doesn't actually exist" thing that gets under my skin.
First, the Federal Government should have nothing to do with marriage. If you look at the history of civil marriage in this country, it was enacted to stop interracial marriages, and to define property. And property at the time was the wife, as women were considered property. This went on for hundreds of years. With our current interpretation of the constitution and additional amendments, the whole purpose for civil marriage would not survive constitutional muster.
This is not just a fundamental right issue. Because the Federal Government has decided to afford different benefits to married people, by not availing gay couples of those same benefits,
it is an equal protection issue. If you are married you get different income tax benefits, estate tax benefits (estates passing to a spouse are not subject to estate tax) insurance benefits, etc. I personally think the Federal Government has no business regulating marriage, or providing different benefits to those that are married, but because they do, they need to provide those benefits under a constitutionally acceptable standard.
Under
U.S. v. Windsor, the standard used under a equal protection claim for sexual preference was ruled to be a quasi-suspect classification that required intermediate scrutiny (When intermediate scrutiny is involved, the courts are more likely to oppose the discriminatory law when compared to a rational basis review, particularly if a law is based on gender, or sexual orientation.
Romer v. Evans 116 S.Ct. 1620 (1996),
Lawrence v. Texas, 123 S.Ct. 2472 (2003),
Windsor v. United States,133 S.Ct. 2675 (2013).
So there you go, there is a Supreme Court decision that struck down the federal Defense of Marriage Act (DOMA) as unconstitutional because laws that classify people (and benefits) on the basis of sexual orientation could not survive constitutional muster.
Based on the
Windsor ruling, I don't see how the 10th Circuit could overrule Judge Shelby's decision based on current case law. To overturn the case, the 10th circuit must find legal error. Based on Windsor, I don't think they can.
