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Harold Pease, Ph. D

A frequently asked question is how can a non-elected judge undo the elected will of the majority of the people on same-sex marriage? “What value is my vote?” they protest. In state after state the Defense of Marriage Act defining marriage as between a man and a woman was passed—even in liberal bastions like California. Likewise, in state after state, since passage, non-elected federal appellate judges have ruled same-sex marriage to be constitutional, reversing the will of the majority. Probably less than fifty judges have effectively reversed the vote of several million voters and that group feels cheated.

The October Supreme Court decision to allow the rulings of the Appellate Courts to stand, by its not ruling on the issue at this time, allows same-sex marriage in 11 more states resulting in a sweep of 30, plus the District of Columbia. For the West the issue seems settled among the judges but three U.S. Circuit Court of Appeals still have to weigh in, 5 (Texas and Mississippi), 6 (Ohio, Kentucky, Tennessee and Michigan) and 11 (the deep South), and if one of these rule for the voters, and opposite their fellow judges, the U.S. Supreme Court will have to take up the issue. If none of the circuit courts oppose, then the issue is resolved against the vote of the people unless they initiate a new constitutional amendment supported by three fourths of the states saying otherwise.

Still, many ask, “On what constitutional grounds was the Defense of Marriage Act ruled by the judges to be unconstitutional?” Under the Constitution originating with the Founding Fathers it could never have been. It is the perversions of the document that came much later that have resulted in the judges ruling as they have.

Let us begin with some basics. The first and most pronounced division of power recognized by the Fathers was between the states and the federal government called federalism. Basically state powers included everything except what was listed as federal power primarily in Article I, Section 8, because all agreed that the nature of all national governments was to grow and the Constitution was designed to specifically limit it doing so. That truth is most profoundly stated in Amendment 10 of the Bill of Rights. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Simplistically federalism meant that the Federal Government would handle mostly foreign affairs and the states domestic affairs.

After the Civil War reentry of southern states into the union required their agreeing to extend all constitutional rights to their black population as well. Amendment 14, Section 1, disallowed states from depriving “any person of life, liberty, or property without due process of law: nor deny to any person within its jurisdiction the equal protection of the law.” To the law makers of the day this was essentially the Bill of Rights and little more, but the phases “due process” and “equal protection,” not defined, became fertile soil for federal government’s natural tendency to grow; and grow it did like a cancer, many times beyond original intent—each expansion becoming the rational for even more expansion. Each phrase took on a life of it’s own. The judges, sometimes with tortured logic, were able to rule that a state may not deprive their same-sex couples from due process and equal protection of the law. Heterosexuals sometimes get advantageous by their marriage: taxes, adoptions and etc. also wanted by the homosexual community. These two nebulous phrases “due process” and equal protection” are the hinges of the door of the whole gay agenda.

So it comes to this. If a judge gives weight to these terms, not introduced into the Constitution until after 1865, seventy-eight years later and thereafter altered and expanded as needed and never understood by the writers of the amendment in the light of radical change, he will use it to make marriage denial for same-sex couples unconstitutional. To do so, however, he must minimize Article I, Section 8, and Amendment 10 and utterly discard the philosophy of federalism. Such judges endorse the movement to grow the federal government, righting all wrongs and solving all problems through the central government—just the opposite of what the Constitution is supposed to do.

Constitutionalist judges, on the other hand, value these essential components of the Constitution and will rule otherwise. Since marriage, or anything remotely similar to it, is no where mentioned in the Constitution the proper place for it, as for everything else not specifically given to the federal government, is at the state level. Would that mean that some states would allow gay marriage? Perhaps this in time would come about but only by the vote of the people, not by unelected and unaccountable federal judges. Then people would not feel disenfranchised.