Friday, June 27, 2014
Same-Sex "Marriage" and Federalism

In the article below, Ryan Anderson of the Heritage Foundation does a great job of explaining why the appellate court decision on the Utah case is wrong.  If the 10th Amendment means anything, it would apply in this case.  The U.S. Constitution is silent on marriage.  The DOMA decision of last year says as much.  The rightful place for marriage to be decided is within the states.  If federalism has any life support left, SCOTUS will allow the states to decide marriage for themselves.  Anything less would be pure, unadulterated judicial activism by the federal courts into a state issue.  

Today the 10th Circuit Court of Appeals issued an important ruling on Utah’s marriage amendment. This is the first time a circuit court has ruled on marriage since the U.S. Supreme Court’s ruling on the federal Defense of Marriage Act (DOMA) this time last year. In a 2-1 split decision, the 10th circuit ruled that Utah’s marriage amendment defining marriage as the union of a man and a woman violates the 14th Amendment of the U.S. Constitution.
The majority held that “the Fourteenth Amendment protects the fundamental right to marry” and that “a state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.” The decision will almost certainly be appealed.
Of course the Fourteenth Amendment protects the fundamental right to marry—but the Supreme Court decisions that established a fundamental right to marry understood marriage as the union of a man and a woman. In issuing today’s ruling, the court implicitly supplied its own, new answer to the central question in this debate: what is marriage?
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