The list of states that define marriage as between a man and a woman keeps getting shorter, thanks to activist judges that have disregarded years of legal precedent and struck down laws that don’t fit their personal agenda, contend conservative legal scholars and advocates of traditional family values.
The latest blow to traditional matrimony came Wednesday when federal courts struck down laws in Utah and Indiana that ban same-sex marriage.
Indiana’s ban was lifted immediately, and a county clerk in Indianapolis said she would start issuing licenses to same-sex couples, even though the state’s attorney general said he planned to appeal the decision.
U.S. District Judge Richard Young ruled that Indiana’s Defense of Marriage Act violates the U.S. Constitution’s equal-protection clause, because it treats same-sex couples differently.
“Same-sex couples, who would otherwise qualify to marry in Indiana, have the right to marry in Indiana,” he wrote. “These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.”
Also on Wednesday, a three-judge panel on the 10th U.S. Circuit Court of Appeals in Denver ruled in a 2-1 decision that Utah can no longer deny a marriage license to a couple based solely on their genders. The same court is also considering the ban in Oklahoma but did not rule on that case Wednesday.
With the two rulings Wednesday, same-sex marriage is legal in 20 states plus the District of Columbia. Thirteen states have had their marriage laws overturned by a federal court, and in many cases, such as in Indiana, a single judge made the decision.
Wednesday’s rulings came on the eve of the one-year anniversary of the Supreme Court’s 5-4 ruling that struck down California’s voter-approved ban on same-sex marriage, Proposition 8. The judge in the forerunner to that case, Vaughn Walker, later admitted he was homosexual, which opponents argued was a conflict of interest.
Daniel Schmid, litigation counsel for the pro-family non-profit legal advocacy group Liberty Counsel, said activist judges are erasing hundreds of years of legal precedent and imposing same-sex marriage on the states by judicial fiat.
“I have to be honest with you. When I look at each one of these cases I see an activist judge kowtowing to the homosexual lobby, ignoring precedent and overstepping the bounds of what they’re supposed to do,” Schmid told WND.
He cited the example of Baker v. Nelson, a 1971 case in which the Minnesota Supreme Court ruled the state’s limitation of marriage to a man and a woman did not violate the U.S. Constitution. The case was appealed to the U.S. Supreme Court, which dismissed it “for want of a substantial federal question.”
“Baker versus Nelson had been binding precedent for a long time, and now you have federal judges ignoring that and saying ‘we’ve had significant doctrinal developments,’ when only the U.S. Supreme Court can issue doctrinal developments,” Schmid said.
He said the activist judges love to cite Loving v. Virginia, a 1967 case involving the marriage of a black woman and a white man in which the Supreme Court struck down state laws preventing interracial marriage.
“They use that case to say there is a fundamental right to marriage. Yes, but it’s a fundamental right to marry a member of the opposite sex,” Schmid said. “And for good reason. The state has always had a compelling interest in fostering procreation. The 10th Circuit Court today ignored that. They walked right past that.”
Schmid said several studies have indicated that children who grow up in families with a mother and a father also tend to do better academically, physically and emotionally.
He said advocates of same-sex marriage will argue that divorces shouldn’t be allowed either, then, because children do better with two parents in the home.
“But just because there are situations out there that aren’t ideal doesn’t mean the state can’t encourage what is optimum,” Schmid said. “These judges are literally making it up as they go along. What has changed is we now have activist judges and homosexual friendly politicians who are just ignoring what the Constitution says, siding with an ideology and politics over sound precedent and the rule of law.”
‘Rising disdain for the rule of law’
The Family Research Council also issued a statement Wednesday denouncing the two rulings on same-sex marriage.
FRC President Tony Perkins said the rulings came as no surprise, given “the rising disdain for the rule of law promoted by the Obama administration.”
“These latest rulings are not just about redefining marriage, but they are a further attempt by the courts to untether our public policies from the democratic process, as well as the anthropological record,” he said.
Just last week, the U.S. Senate confirmed two openly “gay” judges – Darrin Gayles to the U.S. District Court for Southern District of Florida and Staci Yandle to the U.S. District Court for the Southern District of Illinois.
Gayles becomes the nation’s first openly homosexual black man to be confirmed to the federal bench while Yandle will become the nation’s second black lesbian federal judge.
Perkins said that while judges can, “by judicial fiat, declare same-sex ‘marriage’ legal, they will never be able to make it right.”
He said the rampant judicial activism that has taken hold of the federal courts could backfire if pushed too far.
“The courts, for all their power, can’t overturn natural law. What they can do is incite a movement of indignant Americans, who are tired of seeing the foundations of a free and just society destroyed by a handful of black-robed tyrants,” Perkins said. “The left has long believed packing the federal courts with liberal jurists is the means of fulfilling a radical social agenda, as the American people refuse to endorse that agenda at the polls or through their elected representatives.
“As we saw with Roe v. Wade in 1973 – despite the left’s earnest hopes, the courts do not have the final say. The American people will have the final word as they experience the consequences of marriage redefinition and the ways in which it fundamentally alters America’s moral, cultural and political landscape.”
Same-sex marriage in Utah likely will remain on hold pending the appeal.
In his dissent Wednesday, 10th Circuit Justice Paul J. Kelly Jr. said the court was overstepping its authority and that states should be able to decide who can marry.
“We should resist the temptation to become philosopher-kings, imposing our views under the guise of the Fourteenth Amendment,” he wrote.