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Opening Arguments

If it can happen in Utah . . .

Question: Do you think Indiana legislators are paying attention to what's happening in Utah? Answer: They'd be crazy not to.

A federal judge in Utah — who last week issued a controversial ruling allowing same-sex marriages — on Monday denied the state’s request for a stay.

State attorneys had argued before U.S. District Judge Robert J. Shelby that same-sex couples who marry in Utah would be irreparably harmed if the state’s continuing efforts to overturn the judge’s ruling succeed and those marriages are later invalidated.

In denying the request for a stay, Shelby agreed with an attorney representing three same-sex couples in the lawsuit that challenged Amendment 3, saying the state had only regurgitated the arguments he had already thrown out.

But state attorneys wasted no time in filing a request for a stay — their third such request since Friday — with the 10th Circuit Court in Denver.

The state’s latest request asks the 10th Circuit Court to grant an emergency stay, stopping same-sex marriages immediately — a stay they want to be in effect until the appeals court decides whether to overturn Friday’s decision. The appeals court is not expected to make that decision for at least a few months.

One of the most common arguments by opponents of putting Indiana's gay sex ban into the state constitution is that we already have a law, so the constitutional amendment would be superfluous. But advocates for the amendment point to other states where rogue courts (their term) have invalidated the law. If we really want to keep the ban, we need something that is harder to undo, like a constitutional provision.

But as we can see in Utah, judges can just as easily undo a constitutional amendment as they can a law. And this was an amendment resulting from a voter referendum (who Ok'ed it 2-to-1), just as it is intended here. A judge said, basically, screw the legislature and screw the people of tah, I know what's right and moral here. And the result is utter chaos.

The most obvious ones in Indiana to benefit from the Utah case are the advocates for the amendment. It at least adds some urgency to their claim that the state must do all it can to protect itself from activist judges. But I can see the other side using the case for their argument, too: If a judge can invalidate a constitutional provision as easily as a law, then what's the point of doing this?

I continue to believe this will ultimately (but not that far off) be decided by the U.S. Supreme Court with a blanket decision that all states will have to live with. In the meantime, voters might at least get to have a say on the matter here, if not the final say.

But wow, oh, wow. What an answer to "A court would never dare do such a thing in ultra conservative Indiana." Utah, man.