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Saturday, December 21, 2013

Utah judge cites 1972 Baker gay marriage case

newspaper headline Utah judge approves gay marriage followed by Family Circus cartoon's Merry Christmas 12/25/13

PHOTO: (click photo to enlarge) UPDATE 12/25/13: An old-fashioned physical newspaper featured a headline about the Utah Judge's approval of gay marriage followed on the next page in same position with the "Merry Christmas" greeting from "The Family Circus" cartoon by Bil Keane. I am sure some gay children, who are still reading the "comic pages," were inspired by this headline on their way to a "Merry Christmas." (Photo of Corvallis Gazette-Times, Dec. 25, 2013, p. B5 and p. B7)

Recent selfie by Jack Baker and Michael McConnell shown by Oprah Winfrey Oct. 27, 2013

PHOTO: A recent selfie photo of Jack Baker and Michael McConnell was shown by Oprah Winfrey as she expressed her amazement over how "brave" they had to be in the 1970's to fight for the right to gay marriage. see previous posts Oprah impressed by Jack Baker's gay marriage activism in 1970s (10/28/13) and Gay marriage discussion in 1953 vs. 1963 and today (12/16/13)

Utah's State Constitutional ban on same-sex marriage was struck down by a Federal court ruling that addressed the U.S. Supreme Court's 1972 decision in the Baker v. Nelson case of Jack Baker and Michael McConnell. Here are are two comments on it by legal experts Arthur S. Leonard, a professor at New York Law School since 1982, and Bloomberg's Lyle Denniston:

"Shelby found that Windsor made clear, as cumulative to prior Supreme Court decisions, that the Supreme Court's 1972 ruling in Baker v. Nelson holding that the issue of same-sex marriage did not present a substantial federal question was no longer a binding precedent on lower courts. He pointed out that the Supreme Court has said that a disposition on that ground ceases to be binding on lower courts when subsequent developments in case law render it obsolete. Shelby found that many Supreme Court cases decided since the 1970s, considered cumulatively, have created a substantial federal question." (Quoted from Arthur S. Leonard, a professor at New York Law School since 1982, "Utah May Be the 18th Marriage Equality State," posted Dec. 20, 2013)

"Along the way toward his ultimate conclusion, Judge Shelby ruled that the issue of state authority to outlaw same-sex marriage is no longer controlled by a one-line 1972 Supreme Court decision in a Minnesota case, Baker v. Nelson. Opponents of same-sex marriage have often relied on that ruling, which said simply that such a ban did not raise a "substantial federal question."While some other courts have found that the Baker precedent still determines the issue, Judge Shelby said that all of those rulings had been issued before the Supreme Court ruled in the Windsor case last June. In that decision, the Court found that the Defense of Marriage Act's provision that all federal benefits keyed to marriage were limited to opposite-sex marriages violated already-married gay and lesbian couples' right to equality." (Quoted from Lyle Denniston, "Utah's same-sex marriage ban falls (FURTHER UPDATED)," posted Dec. 21, 2013, accessed 11:49 AM)

The Rachel Maddow Show on MSNBC last night (Dec. 20, 2013) did a good job explaining the issue of how marriage laws have been traditionally treated as a matter of State law and the issues surrounding legal problems that can occur when State laws conflict with the U.S. Constitution and Federal laws, which is an issue with the Utah State Constitutional Amendment against same-sex marriage. Hopefully, this will not be a call to action from anti-gay theocrats for a U.S. Constitutional Amendment to ban same-sex marriage -- I haven't heard of anybody trying to propose doing such a drastic thing, except during the 2004 Bush Presidential campaign, when anti-gay marriage ballot measures were used as a wedge issue to get conservative voters out to reelect President Bush, including one on the 2004 Oregon ballot that that ended up creating a State of Oregon Constitutional Amendment against gay marriage.

UPDATE 12/25/13: Art Leonard, "What Happened Yesterday in Utah," posted December 25, 2013 details the importance of the expedited ruling and the irony of the Mormon Church's participation in the creation of the issues in this case.