Traditional marriage isn’t going down with a whimper. Though the Supreme Court struck down portions of the federal Defense of Marriage Act last year, it left intact state prohibitions on same-sex unions. That set the stage for bitter conflict as radical homosexual activists have been on a tear, hunting for activist judges eager to correct how civilization has managed itself for thousands of years.
There’s a bit of hope Tuesday that a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond could restore some balance. The judges will hear Bostic v. Schaefer, the activist decision of U.S. District Judge Arenda L. Wright Allen, who decreed that Virginians can’t decide that marriage is a contract between one man and one woman.
Federalism demands this misguided decision be tossed out. Though liberal jurists see the 10th Amendment as naive and foolish, and therefore obsolete, the text is straightforward and precise: “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.”
Marriage is neither identified nor implied among the enumerated powers of the national government. It was the people of Virginia who decided in 2006 that matrimony shouldn’t become the “anything goes” business that society’s deconstructionists prefer. Liberal judges, most but not all of them appointed by Democratic presidents, have taken it on themselves to disregard the collective will, not just in Virginia but in states from Utah and Oklahoma to Michigan and Kentucky.
To achieve the result they want, those federal judges misapplied the Supreme Court’s 2013 decree in United States v. Windsor, requiring the federal government to recognize homosexual marriages performed in states where they are legal. The precedent says that the federal government can’t withhold recognition where those marriages were already allowed. The decision does not say states that forbid homosexual marriages must allow them.
The more relevant precedent is found in last month’s Supreme Court ruling in Schuette v. Coalition to Defend Affirmative Action, which upheld Michigan’s state constitutional ban on the use of racial preferences in college admissions. Justice Anthony M. Kennedy defended the importance of voters deciding sensitive issues, and at least five states defending their bans on homosexual marriage against legal challenges have cited this opinion of Justice Kennedy — who was the deciding fifth vote in Windsor — to argue that voters and elected officials, not unelected judges, should decide this issue, on a state-by-state basis as envisioned by the 10th Amendment.
If judges decide the topic of marriage is off-limits to the political process, it follows that many other issues would be decided by judicial fiat instead of the democratic will of the people. “Tax policy, housing subsidies, wage regulations, and even the naming of public schools, highways, and monuments,” wrote Justice Kennedy, “are just a few examples of what could become a list of subjects that some organizations could insist should be beyond the power of voters to decide, or beyond the power of a legislature to decide when enacting limits on the power of local authorities or other governmental entities to address certain subjects.”
The states would never have ratified the Constitution without the 10th Amendment as a protection against the leviathan the federal government has become. Overturning Judge Allen’s decision is not only important to retain traditional values, but to the restoration of stolen constitutional protection.