West Virginia May Have Marriage Redefined Thanks to Court Ruling (UPDATE)

Posted on August 8, 2014 in Marriage by

marriage mapFederal judges have been redefining marriage in conservative states at an alarming rate. I’ve been watching the dominos fall and keeping up as court after court strikes down voter approved marriage protection amendments. (Click here for my first post on the subject, or click here for my previous update.)

The first post centered around 13 states – conservative states – where marriage was being threatened by judicial activism. Since that first post, much has changed. Of those original 13 states where marriage was being threatened, all of them have had their marriage protection amendments struck down. Two others, Georgia and Wisconsin have been added to the list.

This means that 15 conservative states where marriage laws protected natural, one man one woman marriage by a vote of the people have now had those laws wiped out by a single judge, or a panel of judges. That fact should trouble every freedom loving American that believes our Constitution stands as a barrier to such radical activism.

What does this mean for West Virginia?

To understand what will happen in West Virginia we must look to what happened in Virginia. The 4th Circuit Court of Appeals struck down Virginia’s voter-approved marriage protection amendment as unconstitutional. Why does that matter for West Virginia? West Virginia is in the same jurisdiction as Virginia, under the 4th Circuit. So, if the 4th Circuit has already struck down one voter-approved law defining marriage between a man and a woman, it will certainly have no trouble striking down others.

This decision impacts North and South Carolina, as well as West Virginia. Since West Virginia doesn’t have a voter-approved marriage protection amendment, only a DOMA law, there is no reason to believe our DOMA law will stand if challenged. Oh, by the way, there is currently a challenge to the West Virginia DOMA law in federal court.

Commenting on what happened in Virginia, Victoria Cobb, president of the Family Foundation of Virginia said:

“Marriage expresses the reality that men and women bring distinct, irreplaceable gifts to family life, especially for children who deserve both a mom and a dad. Virginia’s laws have always rightly reflected the true and complementary nature of marriage. It’s sad that the judges have chosen to disenfranchise the 1.3 million Virginians who legally voted to amend our Constitution.”

And John Stemberger, CEO of the Florida Family Policy Council, said of what happened in Florida:

“Race and ethnicity are not an inherent property of marriage. Gender, however, is an inherent property of marriage. Loving, in essence, said any man can marry any woman irrespective of race and ethnicity. With one stroke of a pen, a mere trial judge has attempted to overthrow an act of direct democracy by five million Floridians who defined marriage as the union of one man and one woman.”

Alliance defending Freedom senior counsel Byron Babione commented on what took place in Oklahoma:

“Every child deserves a mom and a dad, and the people of Oklahoma confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union. In his dissent, Judge Kelly rightly noted that ‘any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.’ We are consulting with our client and considering her options. Ultimately, the question whether the people are free to affirm marriage as a man-woman union will be decided by the U.S. Supreme Court. If the high court remains consistent with what it held in its Windsor decision, the states will ultimately be free to preserve man-woman marriage should they choose to do so.”

The bottom line is that these judges are acting alone in states where LGBT activists and other lawmakers knew there was little chance of changing the laws. Because these are conservative states where traditional, conservative values are held in high esteem, there is little chance of getting voters to approve marriage redefinition. So, the judges simply wiped out the will of the people and replaced it with their own opinion. While LGBT activists cheer they forget that one day other judges could do the exact same thing and reverse those marriage redefinition laws.

That’s the point. Judges should not be making the law. It’s not for them to decide what laws to keep and what laws to change. That is the job of legislatures and the people. But if we have a president that decides which laws he wants to abide by and which ones he wants to write an executive order changing, well, why can’t everyone do it? And so, anarchy has begun rolling across America because our president doesn’t care about the Constitution.

This is troubling not just because traditional marriage is being marginalized. This is troubling because the rule of law and the order prescribed in the Constitution is being trampled. If judges can decide marriage laws are unconstitutional and change them with a pound of their gavel, why can’t they decide gun laws are unconstitutional? See the problem?

Judge Kelly of the 10th Circuit Court that made the decision in Oklahoma sees a problem, which is why he dissented in that decision. He made this statement:

“Simply put, none of the Supreme Court cases suggest a definition of marriage so at odds with historical understanding. The Court has been vigilant in striking down impermissible constraints on the right to marriage, but there is nothing in the earlier cases suggesting that marriage has historically been defined as only an emotional union among willing adults. Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes, the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.”

The definition of marriage belongs in the hands of the people of West Virginia as well. So far, none of our elected lawmakers agree. That’s a problem.

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