- - Thursday, August 21, 2014


The U.S. Supreme Court rightly put the brakes on the raid on the Constitution by lower-court judges trying to speed up the proliferation of same-sex marriage. In a 2 to 1 ruling, a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond had declined to stay its July approval of same-sex marriages while the matter is appealed, as it will be, to the Supreme Court.

Had the Supreme Court not ordered the stay, county clerks in Virginia would have been required to issue marriage licenses to homosexual couples as of Thursday. In anticipation, new paperwork had been prepared substituting the word “spouse” for “bride” and “groom.” Only in a same-sex marriage can there be two wives and two husbands.

Unlike the judges of the 4th Circuit, most other district and appeals court judges who struck down — wrongly, in our view — legally enacted state bans on homosexual marriage have had the self-restraint to issue stays, understanding that the Supreme Court would have the ultimate say.

The 4th Circuit’s ruling in Bostic v. Schaefer, overturning Virginia’s constitutional amendment and its Aug. 13 denial of a request for a stay, were the work of Judges Roger Gregory and Henry F. Floyd, fervent liberals both. Neither explained why he would deny the stay requested by Prince William County Court Clerk Michelle McQuigg.

The Supreme Court didn’t explain its own decision to stay the Virginia ruling, but it was likely to be consistent with the Utah stay and to avoid the legal chaos and strife that would surely have engulfed states throughout the 4th Circuit. Clerks in those states where state law prohibits same-sex marriage — North Carolina, South Carolina and West Virginia — would not have been required to issue marriage licenses. But rogue judges, of whom there is an ample supply, might have taken it upon themselves to order them to do so.

This legal chaos is completely unnecessary. It can ultimately be laid at the feet of the liberal federal judges’ misreading, deliberate or not, of the Supreme Court’s June 2013 decision in U.S. v. Windsor to impose their personal preference to support a heretofore unknown “right” to same-sex marriage.

The 5 to 4 ruling in Windsor struck down a part of the federal Defense of Marriage Act that defined marriage, for the purposes of federal law, as being only between a man and a woman. The Defense of Marriage Act had effectively barred the federal government from recognizing same-sex marriages, even in states where it had been made state law. The ruling found that part of the act to be unconstitutional, but what it didn’t do was determine that state bans on homosexual marriage are unconstitutional.

The judges in the 4th Circuit and elsewhere who have ruled otherwise since then apparently drew their inspiration from “emanations” and “penumbras” from Windsor, to borrow Justice William O. Douglas’ ludicrous terminology in a 1965 decision in a birth-control case justifying the creation of a constitutional right to privacy that is nowhere found in the Bill of Rights.

The better precedent would have been the high court’s 1972 decision in Baker v. Nelson. Two homosexual men, denied a marriage license in Minnesota and rebuffed by that state’s highest court, appealed to the Supreme Court. The justices turned away their appeal with one clarifying sentence: “The appeal is dismissed for want of a substantial federal question.” Marriage was not a federal question then, nor should it be one now.

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