Exactly one week after a federal district judge in Utah (a Bush 43 appointee) dramatically narrowed the scope of Utah’s anti-bigamy law, another federal judge in Utah (this time an Obama appointee, Robert James Shelby) has ruled (in Kitchen v. Herbert) that Utah’s definition of traditional marriage violates the federal Constitution.
I’ve barely glanced at the opinion, but I’m struck by Judge Shelby’s assertion in his conclusion that the desire for same-sex marriage “is a testament to the strength of marriage in society, not a sign, that … it is in danger of collapse.” It seems to me instead that the very notion of same-sex “marriage” has been made possible only by the decades-long collapse of marriage. But I suppose that what really explains our different assessments is that we have very different understandings of what marriage is. (Somehow I don’t think that further misorienting marriage away from its central mission of child-rearing is going to help address the long-term social crises that massive numbers of out-of-wedlock births present.)
I probably won’t offer any more commentary on the ruling, as its primary significance is to tee the matter up for the Tenth Circuit’s consideration. Not that I’m optimistic, post-Windsor, on how the appellate process will go.