For a little over two weeks, same-sex couples in one of America’s most conservative states could legally wed.  Now, two weeks after a federal district court judge ruled that Utah’s ban on same-sex marriage was unconstitutional, the Supreme Court of the United States granted Utah’s request for a stay on same-sex marriages.  As supporters and opponent of the state ban gear up for an appeal to the 10^th Circuit, perhaps an overview of some of this story’s more bizarre aspects is needed.

One of the most interesting aspects of these events is the judge who issued the initial ruling or, more specifically, how those who once touted him are treating him now.  Judge Robert J. Shelby is a Utah native who was praised by Utah conservatives – including Tea Party member Sen. Mike Lee – when President Obama nominated him for his present post.  In fact, it was Republican Sen. Orrin Hatch who recommended Shelby for nomination.  Unlike so many of the Obama’s judicial nominees, Shelby faced no serious Republican opposition and was confirmed in September 2012.  But that was 2012.  After Shelby’s December 20 ruling finding Utah’s ban on same-sex marriage unconstitutional, Utah Gov. Gary Herbert claimed that Shelby was an “activist judge” who was using his power to override the will of the people.

Another unique part of this story is that same-sex couples were able to immediately marry when the decision was handed down.  Unlike most other states that have legalized same-sex marriages by either judicial decision or legislative act, same-sex marriages in Utah were permitted to commence immediately when Shelby – and subsequently the 10^th Circuit – denied the state’s request for a stay.  The result: an estimated 1,000 same-sex weddings were performed during the 17 days between Shelby’s decision and the Supreme Court’s stay.

This leads us to the current showdown between state and federal government.  On January 12, Attorney General Eric Holder announced that the marriages performed during the 17 day window were valid for purposes of federal law.  Governor Herbert responded that while the state would comply in providing the newly-married same-sex couples with federal services through state agencies, it would not extend state benefits until the 10^th circuit has ruled on the issue.  Both supporters and opponents of Utah’s now-uncertain same-sex marriage ban would likely agree that this state-national discrepancy is awkward in the extreme.  While the political posturing continues, same-sex newlyweds in Utah are caught in the middle.

Finally, we come to the state’s arguments to the Supreme Court; they must be read to be believed.  In its request for a stay, the state ditched the “responsible procreation” argument that it tried out when requesting a stay from the 10^th Circuit; instead, Utah argued that its ban on same-sex marriage promotes “optimal parenting.” While surely this phrase will turn out to be as vague as it is euphemistic, I hurry on so that I may address the state’s second, slightly more insane argument: that the ban is beneficial because it promotes “gender diversity” in marriages and parenting.  This is quite possibly the most disingenuous invocation of gender diversity on record, as evidenced by the notion of diversity being forcibly applied to families in any other context.  Just as no one would agree that marriage should limited to interracial couples in the name of racial diversity, no one honestly believes that diversity is the real reason anyone wants to see this ban upheld.

(Citations for this article can be found at the hyperlinked text within)

This week, a judge on the U.S. District Court for the District of Utah heard arguments in a case challenging the state’s constitutional amendment banning same-sex marriage.  Considering that this is one of just 40 such challenges in 22 states, this may not seem like a particularly unique development.  However, the Utah lawsuit – and all other lawsuits challenging state marriage bans – represent a fundamentally different approach to achieving marriage equality than the recent votes in the Hawaii and Illinois legislatures to permit same-sex marriage.  The question that arises is this: when it comes to marriage equality, should it matter if a state’s policy is changed by democratic vote or by judicial decision?

Inevitably, the issue boils down to majority versus individual/minority civil rights.  Voting on marriage equality via legislative bills or ballot initiatives is attractive in the obvious sense that it is the more democratic route.  Naturally, both sides of the marriage equality debate have favored voting on the issue if their state is politically supportive.  Of the 16 non-tribal jurisdictions (15 states and the District of Columbia) that have legalized same-sex marriage, 11 did so by legislative act: Vermont, District of Columbia, New York, Maine, Maryland, Washington, Minnesota, Delaware, Rhode Island, Illinois, and Hawaii.  All 11 jurisdictions reliably vote democratic in presidential elections, and a Gallup poll taken early this year indicates that 7 of these jurisdictions are among the 10 most liberal in nation, based on a sample of adults who self-reported their political ideology.  Accordingly, marriage equality advocates in “liberal” states have put the issue to a vote with little to fear; the Vermont legislature had sufficient votes to both pass a marriage equality bill and override the Republican governor’s veto.

The democratic rout looks less tenable to marriage equality advocates in more conservative states; in such jurisdictions, court challenges may be the future of activism.  The prototypical case here is Iowa, where the state supreme court decided in 2009 that that the state’s restriction of marriage to man and woman violated the state’s constitution.  Some marriage equality advocates seem to turn to the courts after legislative efforts fail.  This seems to be the case in New Jersey: advocates launched a successful lawsuit against the state after the Republican governor vetoed a marriage equality bill that had passed both houses of the legislature.

Personally, I believe that opponents of judicial intervention have little to stand on.  While the democratic process is indeed the preferable method for most issues of public debate, this is not a debate over whether to decrease the state pension fund or increase the state tobacco tax; this is a debate over whether a minority will be denied a civil right that the majority enjoys.  Today, few Americans –including opponents of same-sex marriage – would publically claim that citizens should have voted to abolish state bans on interracial marriage rather than the Supreme Court striking down all such laws in 1967’s Loving v. Virginia.

In the end, I believe that marriage equality advocates should follow whichever route promises the greatest chance of success.  Where citizens of a state are inclined to vote to affirm the civil rights of their LGBT neighbors and family, clearly a vote is preferable.  However, civil rights are not beholden to majority rule.  Where the majority of a state’s citizens or legislatures would likely vote against marriage equality, would-be husbands and wives deserve to proceed via the judiciary.  Men and women denied who are denied civil marriage by the majority for arbitrary reasons should not be lectured to about democracy.

(Sources for this article can be found at the hyperlinked text within)

The progress of the Employment Non-Discrimination Act (ENDA) through Congress highlights a recent development within the GOP generally.  Amidst the party’s civil war for its identity and future, once sheepish moderate Republicans are becoming more willing to stand up against the unpopular ideological purity espoused by the party’s hard-right.

On November 7, the Senate voted 61to 30 to pass ENDA; of the 61 yea votes, 10 came from Republicans.  In a superficial sense, this could be unremarkable given the historical precedent: when the Senate failed to pass a version of ENDA in 1996, 8 Republicans joined Democrats in voting yea.  But the Senate Republicans who voted for ENDA in 2013 are a very different group than those who voted yea in 1996.  First, not a single one of the latter group are still in office.  Second, three senators who voted against the measure in 1996 – John McCain, Orrin Hatch, and Lisa Murkowski – decided to vote yea on November 7.  Finally, many of the Republicans who voted yea in 2013 represent more conservative to moderate states than their 1996 counterparts, especially Orrin Hatch of Utah, John McCain of Arizona, Lisa Murkowski of Alaska, Pat Toomey of Pennsylvania, and Rob Portman of Ohio.

This shift can be seen as reaction to recent support for LGBT rights (especially for employment nondiscrimination), even among Republican voters.  A Gallup poll conducted less than a week before the 2013 vote found that 63% of Americans would vote for a referendum instituting a national ban on sexual orientation/gender identity-based job discrimination.  That same poll pointed to an interesting discrepancy  between Republican senators and Republican voters.  Only 23% of Republican senators voted to pass ENDA this past November, whereas 58% of Republican voters would vote for such a law were it put to a national referendum.  While this demonstrates that GOP social conservatives still vastly outnumber moderates and libertarians in Congress, the November 7 vote indicates there are enough moderate Republican senators to join with even a slim Democratic majority to pass pro-LGBT legislation in the future.

Having passed the Senate, it now falls to the House to vote on ENDA; here, too, party faction continues.  House Speaker John Boehner announced through a spokesperson that he was opposed to ENDA, and that the Republican-dominated House may not even bring the bill up for a vote.  This is in contrast to many Republican representatives who have signed onto the proposed House version of ENDA, which currently has 193 supporters in total.  Many of these moderate Republicans, like Pennsylvania’s Charlie Dent and Florida’s Illena Ros-Lehtinen, also voted for the 2011 repeal of the Don’t Ask Don’t Tell policy.

While moderate voices have clearly begun to reemerge within the GOP regarding ENDA and a number of issues, it is unclear what if any long-term change these members will affect on the conservative majority of their party and future Republican platforms.  In the mean time, there appears to be enough moderates in both houses to join Democrats in passing pro-LGBT legislation aimed at discrimination based on sexual orientation.

(This post’s sources can be found at the  hyperlinked sections of text which reference them).