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Judges Gone Wild, By Lynn D. Wardle · February 1, 2015 Meridian Magazine (ldsmag.com)

“Judge officially ends West Virginia ban on same-sex marriage.” That was the headline. The first sentence of the online news story began with a familiar refrain: “A federal judges for the US District court for the Southern District of West Virginia ruled that West Virginia’s ban on same-sex marriage is unconstitutional . . . .”[i]

Federal judges have “gone wild” in their effort to force states to legalize same-sex marriage. Over the past fifteen months, dozens of federal judges have ruled that the Constitution and Fourteenth Amendments prohibit states from keeping the historic definition of marriage as the union of a man and a woman. Three-fourths of the states with same-sex marriage have such policy as a result of federal court orders, not because of legislative or voter policy decisions.

The federal court orders forcing states to legalize same-sex marriage are an extreme example of dangerous judicial “legislation.” Nothing in the text, history or understanding of the Constitution of the United States or any of its amendments mandates same-sex marriage. None of the Founders who adopted the Constitution and the Bill of Rights, and none of the drafters of the Fourteenth Amendment had any intent to compel states to legalize same-sex marriage. None of them intended to empower federal judges to mandate same-sex marriage.

Marriage was understood to be the gender-integrating institution uniting a man and a woman when the Constitution and Fourteenth Amendment were adopted. Marriage also was understood to be within the jurisdiction of the states (not the federal government) to control.

However, the Founders were concerned that federal judges might use their power of judicial review to impose their personal preferences. They recognized the risk that judges might engage in judicial “legislation.” Those risks have become realized by federal judges ordering states to legalize same-sex marriage. Those rulings violate the balance of powers allocated in the Constitution. Those judges have deprived American citizens of the right to retain marriage laws that reflect the will of the people, not the will of the self-anointed judicial elite.

The Founders did not intend for the federal judiciary to regulate marriage and family law. Rather, they emphatically assured the country that the states would continue to regulate domestic relations. Nothing in the Constitution mandates or authorizes federal judges to mandate same-sex marriage.

The people of the United States could change that by constitutional amendment. For example, they carved out one very specific area of exception when they enacted the Fourteenth Amendment forbidding governmental racial discrimination. Thus, the Supreme Court rightly held in 1967 in Loving v. Virginia that a Virginia law prohibiting interracial marriage violated the Fourteenth Amendment. However, Loving came after a century of judicial delay and evasion of the command of the Fourteenth Amendment.

The Virginia anti-miscegenation law invalidated in Loving was an example of lawmakers attempting to use marriage law to promote a corrupt socio-political philosophy (White Supremacy) that they preferred. Ironically, judicial orders compelling states to legalize same-sex marriage pursue a similar flawed objective: they seek to redefine marriage to promote their personally-preferred philosophy of the total equivalence of same-sex relationships and traditional marriages. And in both cases, the supporters of the controversial marriage policies attempted to “capture” marriage to use it as a weapon in their campaign to force their fellow-citizens to embrace their deeply troubling social perspectives.

Furthermore, nothing in Loving or the Fourteenth Amendment gave a license to federal judges to compel the states to legalize same-sex marriage. The judiciary is the most removed from the general public of all the branches of government, and the least qualified to set social policy of subjects that are so closely linked to core social values of a community as what marriage means.

The recent spectacle of federal judges tripping over themselves in a rush to climb on the judicial bandwagon for same-sex marriage demeans the integrity of the federal judiciary. This judicial trend will stand in history beside the example of judges who long disregarded the Civil War Amendments and enforced racist laws and who were quick to discriminate against other unpopular minorities when such discrimination was popular.

The federal courts have put the United States on the fringe globally. Only seventeen nations of 193 sovereign nations (fewer than 10 percent) have legalized same-sex marriage.

By mandating same-sex marriage, federal judges are writing another sad chapter of judicial history featuring their failure to be faithful to the trust given to them. By ordering states to legalize same-sex marriage, those judges have failed to defend and enforce the Constitution, which allocates marriage policy decisions to the states. This nation, the American people, and our Constitutional system of government deserve better from our federal judges.