Thoughts on the Latest in the Utah Same Sex Marriage Litigation

People following the litigation over same sex marriage in Utah have gotten good taste of the real thing: opposing sides villainizing each other, long periods of no progress followed by short bursts of action, and a convoluted procedural path that both sides try to reduce to an unrealistically clear arc ending conveniently in their absolute victory. Joking  aside (there was a *little* bit of humor there), this has been an action-packed week, and people can be forgiven for being a more than a little confused about where we are at this…

Enabling Act Silliness

Politics has its silly season. But litigation provides for perpetual silliness, as litigants (and their lawyers) continuously grasp at straws to justify outcomes.  I’m even tempted to say I’ve seen more ridiculous arguments practicing law than I’ve seen on Facebook . . . but that might be pushing things a bit far. Regardless, I can say that I’ve been on the grasping side enough times to know when someone has entered the silly zone — and, I hate to break it to you, fellow conservatives: on the idea of a grand public…

Public Opinion and Politics at the Supreme Court

The Supreme Court’s favorability numbers have been falling steadily since 2000, when it issued its (infamous or not, depending on your perspective) decision in Bush v. Gore, which stopped the endless recounts and bickering over hanging chads, made George W. Bush President, and unwittingly set Al Gore on the path to fame and fortune. Currently, just over 50% of Americans have a favorable view of the Supreme Court, down from between 70 and 80 percent in the late 1990s and early 2000s. While it’s impossible to know the precise drivers of…

5 Thoughts on the Kitchen v. Herbert Argument

For those who somehow didn’t hear, yesterday was the oral argument in the Kitchen v. Herbert appeal at the Tenth Circuit Court of Appeals in Denver. Since there are few things I enjoy doing more than listening to a well-argued appeal, I listened to the arguments online yesterday afternoon and have a few thoughts that I thought I would throw out there for anyone who’s interested.  If you’re inclined to listen to the argument yourself, you can find an MP3 here. (1) The State of Utah and the Plaintiffs are…

Utah’s Right to Citizen Legislation: The Curious Case of Statutorily Defined Constitutional Rights

Although the furor over Count My Vote seems to have subsided (at least for now), the battle over Utah’s nominating systems has raised some fascinating issues, one of which has especially piqued my interest. Utah’s Constitution expressly guarantees the right of citizens to legislate via initiative and referendum, but “in the numbers, under the conditions, in the manner, and within the time provided by statute.”  Here’s the full text of the provision, found in Article VI of the Utah Constitution (emphasis added): (2) (a) (i) The legal voters of the State…

Gay Rights, Equal Protection, and the Possible Resurgence of the State Action Doctrine

With the Amendment 3 appeal looming on the horizon, one of the great questions on people’s minds is, “To what extent would a decision striking down Amendment 3 on the ground that it violated the right of equal protection affect the actions of private individuals or businesses?” As always, the Constitution is the starting point.  The Bill of Rights protects only against congressional action (hence, the preface “Congress shall make no law . . . “).  Originally, neither individuals nor states were bound by any of the guaranties, except to…

Thoughts on SB100 and Amendment 3: Delayed Debate, Subordination, and Separation of Powers

UPDATE – February 10, 2014, 2:52 PM.  Daniel Burton of PubliusOnline confirmed with multiple sources at the legislature that it was not Gene Schaerr or the Attorney General’s office that instructed the legislature to put a moratorium on SB100.  This fits better with my impression of Reyes and Schaerr as smart guys and much more experience litigators than myself.  ——————– The talk of the capitol last week was the fate of SB100, Senator Urquhart’s statewide non-discrimination bill, which was tabled — ostensibly along with all other bills related to gay…

Comparing SB100 and Municipal Anti-discrimination Ordinances

One of the perennial hot topics during the legislative session is a statewide anti discrimination bill that would prohibit discrimination in housing and employment on the basis of sexual orientation or gender identity. The first municipality to adopt a sexual-orientation anti-discrimination ordinance was Salt Lake City, which adopted it in November 2009 with the support of the LDS Church.  Incidentally, my view is that the LDS Church was very shrewd in its support of the ordinance.  By throwing its weight behind the ordinance it was able to secure specific religious…