Judicial Arrogance, and Ignorance, in Utah

There are stronger constitutional arguments on both sides of same-sex marriage than any disputants are willing to acknowledge. But the particular manner in which U.S. District Judge Robert J. Shelby reached his decision, announced Friday, overturning Utah’s state constitutional amendment defining marriage heterosexually is a tangle of faulty reasoning and judicial arrogance that will disserve the cause he aims to advance.

The first clue that something is amiss is revealed in the stunning—well, maybe not; but still—error of basic civics on the opinion’s seventeenth page: “When the Constitution was first ratified, [citizens’ fundamental rights] were specifically articulated in the Bill of Rights and protected an individual from certain actions of the federal government.”

That claim—coming here from a federal judge—would cost a freshman points on a blue-book exam. Any student of introductory American government knows the Constitution was ratified over explicit objections that it did not contain a Bill of Rights and on its Framers’ specific insistence that including one might weaken the edifice they had constructed.

One was added three years after ratification due to the leadership of a still skeptical James Madison, who said by way of introduction that it would do little good precisely because it did not apply to exactly the circumstance to which Shelby has applied it: a majority acting against a minority, as in the passage of Utah’s Amendment Three.

This was a case Madison explicitly distinguished from the one indicated in the second half of Shelby’s sentence: protecting an individual against government. Accusing Shelby of sleight-of-hand would be uncharitable; if he is unaware the Bill of Rights was unattached to the Philadelphia Constitution, one cannot assume his familiarity with Madison’s speech in Congress introducing it. Nonetheless, the distinction matters, for the ultimate question Shelby elides is not whether social attitudes toward, and thus laws regarding, same-sex couples will change, but rather how. Shelby writes:

“[T]he court’s role is not to define marriage, an exercise that would be improper given the states’ primary authority in this realm. Instead, the court’s analysis is restricted to a determination of what individual rights are protected by the Constitution. The court must then decide whether the State’s definition and regulation of marriage impermissibly infringes those rights.”

The first sentence is a nod toward judicial modesty that is revoked by the pivot between the second and third. Note the presumption therein that defining rights and assessing their parameters is inherently and apparently solely a judicial function from which the people are excluded. (Why “must” the court, as opposed to the people, make that decision?) This merely assumed judicial supremacy cannot countenance the idea that the constitutional objections Shelby presents—which are of themselves reasonably argued—belong in the political realm.

The problem, of course, is that the arguments he shunts aside cannot be so callously dismissed in that forum either. Shelby’s opinion would all but render Burkeanism unconstitutional. A heading on page 29 reads, “Tradition and history are insufficient reasons to deny fundamental rights,” a compelling formulation but for the possibility that tradition and history might be involved in defining fundamental rights. He tut-tuts Utah’s argument for prudential caution by observing that—heaven forfend—a state could thus “plead an interest in proceeding with caution in almost any setting.” Similarly, he writes, “tradition alone cannot form a rational basis for a law.”

Nor can moral disapprobation, which does not pass “rational basis” scrutiny. And here—to say nothing of the well documented backlash effect that often attends judicial attempts to impose in such matters—is where Shelby disserves his own cause. The very argument that advocates of same-sex marriage are winning in the cultural and political realms is that there is no reason for moral disapprobation. A legal argument that suggests fear of the moral debate, or that the argument can only be won on libertarian grounds, threatens to forfeit that advantage.

In any case, moral distinctions, and decisions about their proper role in lawmaking, are not for judges to make. They are inherently political in character, demanding a degree of mutual respect to which federalism is conducive and judicial fiat is not. Those in an understandable rush for their conception of the just to prevail would do well to recall that what politics asks in the plodding pace of progress it repays in building it on a steadier foundation.

Greg Weiner

Greg Weiner is a contributing editor of Law and Liberty.

About the Author

Recent Popular Posts

Related Posts


  1. Kevin R. Hardwick says


    Nicely done! I thought your final paragraph was especially powerful–I am envious of the facility with which you develop the argument in this post.

    Well wishes,

  2. Devin Watkins says

    I disagree with much of what you have written despite the fact that I don’t support gay marriage nor what this judge did. Lets start with what we agree on, yes the judge was wrong in that the constitution was not ratified with the bill of rights. But were those rights nonetheless protected in the pre-bill of rights constitution?

    Federalist #84: “For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.”
    Now the rights of freedom of press were added to the constitution, but only to
    “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.” Which is why we have a 9th amendment. So its contended by the founding fathers that those rights such as freedom of the press did exist in the original constitution, even if they had not been enumerated.

    The second problem is your lack of belief that courts should determine what rights they believe the constitution recognizes for individuals. Clearly courts are not the only actor who should be determine what rights they believe individuals have and acting on that, the elected branches also have a duty to do so. But that doesn’t mean that courts have no duty to determine what they believe the constitution means and enforce that to the extent of their powers, they would be violating their oath of office if they did not.

    I disagree with you and agree with Judge Shelby that tradition and history of insufficient to deny rights enforced under the constitution. The whole idea of originalism is that the constitution should be interpreted and enforced according to its original meaning not its later traditions or history of how the government acted. Maybe your not an originalist? Even so, even most non-originalist give weight to factors other than tradition and history, and those alone are not sufficient to eliminate people rights. The only kind of traiditon/history that some originalist and non-originalist hold in high regard is stare decisis, but even that falls away if there are strong reasons why courts should overturn precedent.

    As to the moral disapprobation, which was finally struck down as a valid rational reason in lawrence v texas, we who believe in limited government should be celebrating that! Any majority can claim to morally disapprove of anything they don’t like that a minority does, that alone doesn’t mean that there is a reason for taking away the minorities rights. Governments should not be given the power to take away the rights of minorities for just any old reason, but it needs to be a very important reason! That’s just one way we can limit the power of government.

    No the problem with the judges opinion is that an individual’s rights are not violated merely by the recognition of heterosexual marriage but not same-sex marriage. No one has the right of approval by the state, they just have a right to have the state not prevent their actions. Same sex couples have the right to get married in any church that is willing to accept them, they don’t have the right to force the state to recognize that marriage. Now there may be other rights that they don’t get because their marriage is not recognized, that may be a problem (at least for those states without civil unions), but the mere recognition of a marriage is not a right and as such its not violated by the state by defining marriage in that way.

  3. David Upham says

    If tradition and custom are no argument, then precedent is no argument.

    And if the unanimous opinion of humanity prior to say, 19656, was irrational, then I fail to see why we should give any credit to a constitution written by such numbskull, and if it wasn’t such breathtaking ignorance but malice, then again, I fail to see we should obey a constitution drafted by such wicked individuals.

  4. Devin Watkins says

    I mean one can use the history of what was done as evidence of original meaning, but just the fact that we did it this way doesn’t by itself mean that constitutional rights can be violated. The noel canning case where we have traditionally allowed the president to recess appoint people intra-session is a perfect example, despite the fact that this was the tradition and custom, it was still not valid under the original meaning of the constitution. I don’t think the previous opinion of humanity was irrational, but you got to make better arguments then just “that’s the way we always did it”.

  5. says

    David, Greg’s posting is a correct analysis of U.S. District Judge Robert J. Shelby’s decision.
    I don’t know what you read about for our Constitutional references – where, really, it is our Constitution you should be reading. The reason I say this is because of your references in your posting.
    Federalist #84 is Hamilton’s essay. Sounds great to you I guess –but the Congress when it was discussing the BOR’s – certainly did not enumerate its content, quite the opposite.
    “Which is why we have a 9th amendment”, you remark. What happened to the 10th Amendment?
    For the moment, I am going to jump over some of your remarks that I will return to.
    Your remark, “Governments should not be given the power to take away the rights of minorities for just any old reason, but it needs to be a very important reason! That’s just one way we can limit the power of government.” The BOR’s prohibitions only applied to the federal government – not the States (not, (plural) governments.
    If you are (silently) referring to the Fourteenth Amendment, please note that it refers to the States.
    And if you go to the 5th clause, it only refers to the powers of the Congress. The reason I mention this is because of your remark: “But that doesn’t mean that courts have no duty to determine what they believe the constitution means and enforce that to the extent of their powers, they would be violating their oath of office if they did not.” Nowhere in the Constitution does it apply to the Supreme Court. (Please elucidate if you believe otherwise.) I will add your remark here, because it would be appropriate, “we who believe in limited government should be celebrat(ed)!”
    Lastly, your remark: “No one has the right of approval by the state; they just have a right to have the state not prevent their actions.”
    Where, my friend did you EVER read this?
    Respectfully, John

  6. Jeffrey Shapiro says

    I liked the piece. I note your repeated references to the judge’s disservice to “the cause he aims to advance.” You didn’t explicitly criticize him aiming to advance a cause, but I will. As a judge, he is not supposed to be advancing a cause, but rather, deciding cases under existing law. The arrogance and paucity of his legal reasoning reveals his true motive. He has abused his judicial office and ought to be sanctioned accordingly.

  7. Devin Watkins says

    The founding fathers believed in natural rights, rights that exist before government and cannot be removed by government. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” The constitution didn’t enumerate them as it could never enumerate them, they are too numerous to enumerate. That’s the whole point of the 9th amendment. Now its true the bill of rights didn’t apply to the states, but they had their own constitutions which did, its not like the natural rights of man only stopped the federal government from action but any government. The 10th amendment is about powers not delegated to the federal government, states continue to have those powers not delegated. But rights are different then powers, powers are affirmative grants, rights are those exceptions and that is what the 9th amendment deals with. Notice also it says the rights “retained by the people,” these are rights which pre-exist government, they are peoples natural rights not any positive rights granted by government. (its true the 14th amendment has been used as a means of incorporating the federal bill of rights against the states, done under the due process clause rather then the privileges and immunities clause where it should have been, but this has nothing to do with the pre-14th amendment constitution, and the 9th amendment says nothing about “congress shall not”).

    Ever sense Marbury v. Madison (which I agree with) everyone has agreed “It is emphatically the province and duty of the [the judicial branch] to say what the law is”. Although its not only the duty of the judicial branch but all branches “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy… The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.” -Thomas Jefferson

    And the constitution itself says that “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” Which is what gives them the duty to declare what they believe the constitution to mean, and enforce that (to the extent of their powers).

    Clearly no one has a natural right to have the government say that their actions are good, natural rights pre-exist government and as such cannot include government in that right. I believe that gay people, or any two individuals who wish to get married can get married in the church of their choice (assuming the church agrees). That is a natural right, no one who is not a part of that marriage ceremony is harmed by it. If you believe it isn’t a “real” marriage ceremony that it didn’t mean anything, that’s your choice, but government should never be stopping two people who both want to do something from doing that unless it harms others. That’s the whole point of natural rights. But no one has the natural right to have the government say their actions are good, to endorse their acts, or to have government define marriage the way they want it to be defined. That’s up to each state to decide under the 10th amendment as the people of this state did.

  8. Devin Watkins says

    One other thing I talked about why the supreme court has a duty to interpret the constitution and decide cases based on what they believe it originally means. But re-reading your comment, maybe your trying to say where would the supreme court reading the constitution understand that there are these rights and what they are? Well I would again look at Federalist #84, its in the limited and enumerated powers of the government combined with the general understanding of all the founders that individuals had natural rights (see decl of independence among other sources). If the government is founded upon natural unalienable tights of individuals that pre-exist even the constitution, clearly nothing the constitution does can limit those rights. And with that understanding the clear limited and enumerated powers of congress were an attempt to prevent government from violating peoples natural rights (“that to secure these rights governments are instituted among men”). Under that view any attempt to interpretation of the powers of the federal government such that it violated individuals natural rights was not the original meaning of the limited and enumerated powers of the federal government. This is even before the 9th amendment existed, the 9th amendment makes this clearer and explicit constitutional text that the supreme court (and the other branches of government) is bound to follow.

  9. gabe says

    And now that the court in its infinite wisdom has determined that certain citizens have a right to entitlement payments of various sorts, where do you (or our Black robed friends) believe it ends?
    Also, bear in mind that New Deal era SC Justices declared that the 9th and 10th amendments were nothing more than “truisms” and as such were of no substantive value.
    Moreover, with the passage of the 17th Amendment, the federalism, which is implied in some of the comments here no longer obtains – leaving us with the situation which you seemingly applaud – the never ending expansion of “rights” that to the mind and sensibilities of the Founders would be quite obviously shocking.

  10. Devin Watkins says

    So yes the New Deal era SC declared the 9th and 10th amendment were truism and had no substantive value, but they were wrong. The cannon of construction called the presumption against surplusage a presumption against any interpretations that make even one word superfluous. Clearly that interpretation would make the entire 9th and 10th amendments superfluous. The more modern court has taken much stronger interpretations on the 10th amendment (although no decisions on the 9th).

    I never said anything about a “right to entitlement payments”. I am talking about natural rights, rights that pre-exist government and as such you can never have a natural right to be given anything by government. All you can have natural rights are to not have the government interfere with something. And natural rights must by their very nature involve no interference with others rights (one cannot have the right to harm someone else because they have the right not to be harmed, your right to swing your arms ends before your arms hit me). So natural rights are only those that do not involve government (in giving benefits of any kind) and in which no one is harmed by the act.

  11. says

    David, I’ll return w/my new posting to you after Christmas. I don’t think it is appropriate today or tomorrow. Have a great one! And to all our great posters here — Merry Christmas/Happy Holidays!
    Respectfully, John

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>