Shelby was confirmed to the federal bench by a voice vote of the Senate on Sept. 21, 2012. There was no debate over his nomination, and no senator objected to his confirmation.
He has now issued an opinion that could fundamentally alter American law and culture.
“The State’s second argument is that the Plaintiffs are really seeking a new right, not access to an existing right,” Shelby wrote in an opinion issued on the afternoon of the Friday before Christmas.
Shelby ruled in this opinion that the state constitutional amendment that 66 percent of Utah voters approved in 2004 restricting marriage in that state to the union of a man and a woman violated the U.S. Constitution.
“To establish a new fundamental right, the court must determine that the right is ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [it] were sacrificed,” he said.
This unanimously-confirmed, not-debated-on-the-Senate-floor, Obama-nominated judge then proceeded to do that just that.
“Because same-sex marriage has only recently been allowed by a number of states, the State argues that an individual’s right to marry someone of the same sex cannot be a fundamental right,” he wrote. “But the Supreme Court did not adopt this line of reasoning in the analogous case of Loving v. Virginia. Instead of declaring a new right to interracial marriage, the Court held that individuals could not be restricted from exercising their existing right to marry on account of the race of their chosen partner. Similarly, the Plaintiffs here do not seek a new right to same-sex marriage, but instead ask the court to hold that the State cannot prohibit them from exercising their existing right to marry on account of the sex of their chosen partner.
“The alleged right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond,” wrote the judge.
“This right is deeply rooted in the nation’s history and implicit in the concept of ordered liberty because it protects an individual’s ability to make deeply personal choices about love and family free from government interference,” he declared. “And, as discussed above, this right is enjoyed by all individuals. If the right to same-sex marriage were a new right, then it should make new protections and benefits available to all citizens. But heterosexual individuals are as likely to exercise their purported right to same-sex marriage as gay men and lesbians are to exercise their purported right to opposite-sex marriage. Both same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities.”
“The Plaintiffs are seeking access to an existing right, not the declaration of a new right,” said the judge.
The judge argued that the Fifth Amendment, ratified in 1791, and the Fourteenth Amendment, ratified in 1868, are the two provisions of the Constitution that have guaranteed the “existing right” of a man to marry another man or a woman to marry another woman.