An activist federal judge in Virginia ruled last week that defining marriage as the union of one man and one woman violates the United Stated Constitution. Judge Arenda Wright Allen became the third Obama-appointed federal judge in recent weeks to invalidate state marriage amendments adopted by overwhelming majorities of state voters. Her decision, like those in Utah and Oklahoma before it, is wrong as a matter of principle, precedent, and logic. It should be reversed.
In covering these recent judicial decisions holding that it’s unconstitutional to limit marriage to one man and one woman, the mainstream media have erroneously described the findings as “unanimous.” Reporting on the Virginia decision, the Washington Post said that Judge Wright Allen “joined a so-far unanimous group of federal judges considering a question that Supreme Court justices left unanswered in June” — the question of whether state bans on same-sex marriage are constitutional. The characterization of the decisions as “unanimous” is wrong and seems designed to lead voters to conclude that gay marriage is inevitable. In fact, two federal judges, one in Nevada and one in Hawaii, have ruled that traditional-marriage laws do not violate the Constitution. If we’re keeping score on federal-court rulings on the core question about the constitutional legitimacy of same-sex marriage, it’s 3–2 — hardly a “unanimous” legal landscape.
The Virginia ruling is particularly offensive since the judge began her decision by noting the shameful, racist law once employed by the Commonwealth to prohibit interracial marriage. She then compared supporters of one-man-one-woman marriage to those who favored banning interracial marriage, saying that both groups relied on “tradition” to justify their views.
There is no correlation whatsoever between the effort to preserve marriage as the union of one man and one woman and laws that banned interracial marriage. Banning interracial marriage was an ugly chapter in American history. It was about keeping the races separate so that one race could dominate and oppress another. Marriage is about bringing the two sexes together to form a unique union so that children experience the love of a mother and a father.
The Virginia litigation also shines a spotlight on the role of duplicitous, spineless politicians in the ongoing debate about the right of states to define marriage. The newly elected attorney general of the Commonwealth, Mark Herring, not only abandoned his sworn duty to defend the laws of the state, but he actually joined the case against the very people he is duty-bound to represent. Herring, a Democrat, followed the path blazed by fellow Democrats Jerry Brown and Kamala Harris in California, who left Proposition 8 defenseless in federal courts, and Eric Holder, who abandoned a defense of DOMA.
Since when do attorneys general have the right to pick and choose which laws they will enforce and which they will ignore? Can you imagine the hue and cry if a conservative attorney general were to decide that he wasn’t going to enforce environmental laws because he believed they were unconstitutional? The media would declare a constitutional crisis. Yet when politicians who swear an oath to defend the laws of the land abandon true-marriage laws, the media give them a pass and even praise them.
It’s not always Democrats who abandon their duty to defend marriage. Nevada’s Republican governor Brian Sandoval accepted the view of the state’s Democratic attorney general, Catherine Cortez Masto, and walked away from defending Nevada’s constitutional amendment defining marriage — even though a federal judge had previously upheld the amendment. Sandoval relied on an obscure Ninth Circuit ruling in a totally unrelated case as justification for his spineless decision to throw in the towel. And Republican Chris Christie dropped the appeal of a state-court ruling legitimizing gay marriage only because he thought the effort would fail.
These recent actions leave the impression that limiting marriage is somehow unconstitutional and that the Supreme Court will inevitably rule so. The reality of what the Court has actually ruled provides a stunning contrast to this impression. First, last June, the Supreme Court ruled in United States v. Windsor: “The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations. . . . Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.” The vast majority of states have defined marriage as the union of one man and one woman, and, in Windsor, the Supreme Court has ruled that the federal government must accept state determinations. Further, and most recently, the Supreme Court took the extraordinary step of temporarily stopping the recent ruling by a federal-district-court judge in Utah, Judge Robert Shelby, who had ruled in December that Utah’s ban on same-sex marriage was unconstitutional. Shelby’s ruling had immediately legalized gay marriage in Utah. Both the district court and the Tenth Circuit Court of Appeals had refused to temporarily suspend the order, yet the Supreme Court did so in a unanimous order, reinstating Utah’s ban on same-sex marriages while state officials appeal the decision. Under federal-court rules, such a ruling occurs only if the Court believes that the underlying appeal of the decision is likely to succeed.
Apparently, the media and the political elite are happy to ignore inconvenient facts and precedent. They act as if the Supreme Court has already redefined marriage when in fact the Court has specifically declined to do so. If anything, the Court has signaled that it may have gone as far as it intends to go on this issue. At some point, it will be back before the Supreme Court. Until the Court issues a definitive ruling, we fear that the rights of voters will continue to be trampled by activist judges and by spineless politicians more interested in generating headlines and campaign cash than in defending the people they swear an oath to represent.
— Brian S. Brown is president of the National Organization for Marriage.