State Marriage Amendments Should Not Even Be in Federal Court, Period

Barb Wire

The battle in federal courts over state marriage amendments has moved to the next level, as appeals courts now review rulings issued by lone district judges.

Should one appeals court uphold a state marriage amendment and another overturn one, the issue is virtually guaranteed ultimately to make its way to the Supreme Court.

Given the pro-homosexual and anti-family bias of the Supreme Court, as illustrated in its DOMA ruling, the Court is almost sure to impose sodomy-based marriage by tyrannical judicial fiat on the entire country. And the United States will take another lurching plunge into the abyss of moral darkness.

The most important immediate question, however, is whether state marriage amendments should even be in federal court. The answer is a resounding “No.”

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Article I, Section 8 lists all the powers of actions “We the People” have delegated to the central government. Dictating marriage policy to the states is not among them. This means quite simply that the federal government has zero authority to meddle in state domestic policy. As in zip, nada, zilch.

The only legal question that can be asked regarding a state marriage amendment is whether it was enacted according to the process outlined in that state’s constitution. That is a question that should ultimately be the prerogative of that state’s supreme court. If that court rules that the proper process was followed — the issue is purely a matter of process not policy — then that should be the end of the matter.

Federal courts have no constitutional jurisdiction here, and thus it is a gross violation of the system of government created by the Founders for a federal judge or appeals court even to accept one of these cases for adjudication.

The just, proper and constitutional response of a federal court, when one of these marriage amendment cases is presented, should be quite simple and direct: we have no jurisdiction here. Dismissed.

It’s no use citing the 14th Amendment. This amendment requires that each state provide the “equal protection of the laws” of that state to every American citizen within its borders. But if the laws are applied equally, if every citizen is equal under the law, if the same rules apply to everyone, then there cannot possibly be a 14th Amendment violation.

It is a simple matter of fact that homosexuals already possess full marriage equality in all 50 states. They can get married, exactly like everyone else, to one, non-relative adult of the opposite sex.

Marriage has never been an unrestricted proposition. You can’t marry two people, you can’t marry your sister, you can’t marry your mom, you can’t marry your daughter or anyone else’s child, and you can’t marry an animal, even though a Democrat lawmaker in Alabama wants you to. In other words, the same marriage standard applies to everyone.

So when it comes to the “right” of homosexuals to marry each other (there never can be a “right” to same sex marriage since it is impossible for there to be moral or constitutional “right” to engage in sexually deviant behavior), the only possible question for a federal court would be whether a state’s marriage law is the same for everybody. If it is, the discussion is over.

If the right to marry is reserved under a state’s constitution for individuals of opposite genders, and that policy is applied equally, especially with regard to race (given the historical context of the 14th Amendment) then there is simply no constitutional violation. Everyone is equal before the law. If the same law applies to every citizen in the state, then justice is being served.

Since homosexuals already possess full marriage equality, what they want is not equal rights but special rights, “rights” granted on the basis of sexual deviancy. They want special treatment that is not granted to would-be polygamists, pedophiles, and practitioners of incest and bestiality.

The 14th Amendment doesn’t guarantee anybody special rights, it guarantees equal rights. Homosexual activists have no case and no constitutional right even to be in federal court. The sooner federal appeals courts recognize that the better.

The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.

Bryan Fischer is the Director of Issue Analysis at the American Family Association. He has degrees from Stanford University and Dallas Theological Seminary. He pastored for 25 years in Idaho, where he served as the chaplain of the Idaho state senate and co-authored Idaho's marriage amendment. He came to AFA in 2009.

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