Dear Senator Lee:
How can you act as though you don't understand the Equal Protection Clause of the United States Constitution as it applies to state laws limiting the benefits of civil marriage only to some, but not to all people? According to public information, you are a graduate of Brigham Young University Law School, clerked at the U.S. District Court for Utah and then for Justice Samuel Alito at the U.S. Supreme Court. I practiced law, predominately civil rights and constitutional law, for nearly 40 years, though I am now retired. All my knowledge and experience say that you must certainly know, as well as I do, that there is hardly a true word in your statement today decrying the U.S. Supreme Court's entirely regular and meritorious denial of certiorari in the recent marriage equality cases affecting Utah. You got the name of the case, Kitchen v. Herbert, correct, and I'll accept that this outcome disappointed both you and those to whom you are trying to pander. I have no quarrel with any of the articles you used or most of the prepositions and conjunctions in your statement. But pretty much everything else you said is a huge load of crap. As a matter of settled law. Either you know better, or you are far too dim to possess your kind of resume.
[Continue out into the tall grass for the remainder or the letter, including a break down how the law really works, as Senator Lee knows perfectly well.]
Here is your statement from the the Deseret News,
Nothing in the Constitution forbids a state from retaining the traditional definition of marriage as a union between a man and a woman. Whether to change that definition is a decision best left to the people of each state — not to unelected, politically unaccountable judges."
Lee said the high court "owes it to the people of those states, whose democratic choices are being invalidated, to review the question soon and reaffirm that states do have that right.
Senator Lee, your statement comes in 3 pieces, each of which is all wrong. On the basis of very old law. Let me break it down for you. I'm not going to write a brief or cite cases or quote rules to you. I'll try to explain as I would to a child, in case the problem is that, despite your impressive resume, you really are that dim.
First you say:
Nothing in the Constitution forbids a state from retaining the traditional definition of marriage as a union between a man and a woman.
In America, Senator, the very highest law, above all the legislatures, and voters and even above judges, is the Constitution of the United States. We call it the Supreme law. I know you understand that word because of all the time you spend bothering your Supreme being. That Constitution, very specifically, does say that States can't treat people who are the same as though they are different, without evidence that it has a sensible reason to do it. We have a name for that, too. It is called Equal Protection. There is an Equal Protection Clause. You cannot pretend it isn't real. It is as old as the Bill of Rights. Where is your three corner hat?
Telling apart things that are same from things that are different is something children learn to do in Kindergarten. So, let me fix what you said. The Equal Protection clause of the Constitution forbids a state from retaining the traditional definition of marriage as a union between a man and a woman. It does this because the states have not been able to prove that men who want to marry men and women who want to marry women are different, in any important way, from men and women who wish to marry each other. Because all people wishing to marry are the same, so far as the secular state is concerned, the Equal Protection Clause forbids States from letting some people get married while not allowing other people, without being able to give a sensible reason for it.
Then you say that the Supreme Court:
owes it to the people of those states, whose democratic choices are being invalidated, to review the question soon and reaffirm that states do have that right.
I know that you and the people to whom you pander about marriage have deep personal religious beliefs about who should and should not marry. The Supreme Court and the lower courts you disagree with have done nothing to interfere with your personal religious beliefs and there are no penalties in these court cases for your choice of whom to marry. But, it is the sworn duty of a judge, even the highest judge, to honor the rule of law and regular order in cases, even if it means getting in the way of sectarian voter waves that manage to pass intolerably unjust laws. Stopping States from acting like that is among the highest and most important duties of a judge. Let me remind you, Senator, the Constitution says that States aren't supposed to treat people who are the same as though they were different. Such an unfair law is the very essence of injustice. When law suits put marriage discrimination laws to the test, they fail. So let me correct your statement, Senator. The Supreme Court owes it to the people of those States, whose democratic choices are being invalidated, to follow regular order, let the chips fall where they may, and render impartial justice according to the entirely secular and real world evidence. Anything else is injustice, even though your church says otherwise.
Senator, you finished by saying that the high court
owes it to the people of those states, whose democratic choices are being invalidated, to review the question soon and reaffirm that states do have that right.
You need to pay more attention to the evidence in the marriage cases. No state defending its unjust anti-marriage law has ever come up with a nonreligious reason for passing and enforcing the law. The States have had every chance, but have failed. The defenders of these laws have had the resources of every interest group and all the money that the very strong anti-marriage lobby and people like you could muster. The States still had nothing. Evidence of a sane, nonreligious reason for anti-marriage laws is what the States must have in order to defend this kind of law.
The problem is that the evidence does not exist. The evidence does not exist because the reason does not exist. A big reason for that is the sad state of one man/one woman marriage in America. Men married to men and women married to women couldn't possibly do worse than most men and women who marry each other, and everybody knows it. Nevertheless, civil marriage has many benefits for many people, worth real money. Keeping those benefits of marriage away from anyone requires proof of a sane reason. Unfortunately for your side, that proof doesn't exist. Without the proof, no State has the right you claim that Utah and other states possess.
So, I have to know, Senator Lee. Are you really the disingenuous asshole this statement makes you look like given your resume, or are you simply dumber than a Prince Albert can full of marbles?
Sincerely,
LeftOfYou Blog
Daily Kos
P.S. H/T to Joan McCarter for quoting Senator Lee's statement on the Front Page.