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EDITORIAL: Judges legislating ‘morality’ on same-sex marriage

Another federal judge ignores the 10th Amendment to redefine marriage

- - Friday, February 14, 2014

Not so long ago the Constitution got respect. But now, not so much. President Obama is on his way to repealing the separation of powers, and the 10th Amendment is on life-support, ignored by federal judges who know better than the legislatures of Utah, Oklahoma, Kentucky and Virginia.

Mischief-makers in black robes insist on redefining marriage to suit their peculiar fancy.

U.S. District Court Judge Judge Arenda L. Wright Allen last week nullified an amendment to their state constitution as ratified by Virginia voters. "Tradition is revered in the Commonwealth, and often rightly so," wrote Judge Wright Allen, "However, tradition alone cannot justify denying same-sex couples the right to marry, any more than it could justify Virginia's ban on interracial marriage."

That's a reference to a 1967 case, Loving v. Virginia, in which the U.S. Supreme Court struck down state anti-miscegenation laws. It's a particularly false analogy since the plaintiffs in the case, Richard and Mildred Loving, were a man and a woman whose union didn't challenge marriage itself.

The ruling by Judge Wright Allen, appointed to the court by President Obama, proves again that elections have consequences. The Founding Fathers insisted on the 10th Amendment as a firewall to protect the states from the federal leviathan, as the Founders suspected it would one day attempt to trample on the prerogatives of the states.

The 14th Amendment's Equal Protection Clause, cited by the judge as the basis of her ruling, was never meant to invalidate the 10th Amendment decree that powers the Constitution does not assign to the federal government "are reserved to the States respectively, or to the people."

Judge Wright Allen doesn't care much for close textual analysis. The very first page of her opinion says the Constitution declares that "all men are created equal," which is, of course, taken from the Declaration of Independence. (One of her clerks should tell her those are two separate documents.)

Like many of the judges Mr. Obama appoints to the federal bench, Judge Weight Allen is interested only in the outcome of a case, not how to get there.

She stayed her ruling, recognizing that wiser counsel may reach a different opinion. An appeal may require defenders of marriage to hire their own lawyers, since Mark R. Herring, the new Virginia attorney general, won't.

He was elected last November by the narrowest of margins, and had never let on that he intended to argue against Virginia's voters. Many might have pulled a different lever had they known exactly who Mr. Herring is.

Ken Cuccinelli, Mr. Herring's predecessor, thinks the Supreme Court "is probably going to say, '[The state's ban on same-sex marriage] is not an offense to the 14th Amendment, and it is the province of the states to decide this.'"

We hope so, but whether the 10th Amendment survives or becomes a dead letter, could come down to the vote of one man, the Supreme Court's perennial swing justice, Anthony M. Kennedy. Everything depends on which way Justice Kennedy swings.