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Judge Wright Allen’s Wrong
Fighting to preserve marriage is not the same as opposing interracial marriage.


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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.

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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



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