by Nathan A. Cherry
The marriage dominoes are still falling across the country as states see voter-approved marriage protection amendments struck down by activist judges, or undefended by attorneys general taking the law into their own hands.
First we heard about the attorney general in Pennsylvania that simply could not bring herself to defend her state’s marriage amendment. Even though she swore to uphold the law of her state, she refused. Next came newly elected Virginia Attorney General Mark Herring who very quickly after taking office said he would not defend the voter-approved marriage protection amendment in his state. I can’t help but wonder what other laws these attorneys general will decide to ignore.
Then we watched as a federal judge struck down the marriage protection amendment in Oklahoma. Soon after a federal judge in Utah did the same thing. Then Kentucky saw a judge strike down part of their marriage protection amendment, no doubt paving the way for the entire amendment to be discarded.
This pattern of ignoring the law and ruling (by federal judges) or refusing to defend state laws (by attorneys general) should be deeply troubling for anyone that believes in the Constitution. If such a pattern continues it is conceivable that our country will descend into a state of tyranny as those with the power increasingly rule without consent from the people. Our Founder’s sought to protect against this very thing and yet, as we are seeing, this form of government is upon us.
In light of an attorney general that is refusing to do her job, lawyers in Pennsylvania are currently defending the state’s voter-approved marriage amendment. Governor Tom Corbett is asking that the lawsuits challenging the state law be thrown out. Most troubling is the fact that no one seems bothered by an elected official that swore to uphold the laws of her state refusing to do what she swore to do. It doesn’t matter if she agrees with the law, she is sworn to uphold the law and seek lawful means of overturning it if she doesn’t agree. To simply refuse to do her job is a sign that lawmakers increasingly feel justified in taking the law into their own hands without the consent of the people. That is certainly not a trend America wants to foster.
Right now a challenge to Colorado’s marriage protection amendment has been filed and is awaiting court hearing. Unlike many states, the attorney general in Colorado plans to defend state laws because “It is the job of the Attorney General’s Office to defend our state laws, and we will defend against this new lawsuit as we would any other.”
City Clerk Debra Johnson exhibited a proper view of law in stating she will follow the law even though it is opposed to her personal views:
“I believe all adults should be able to marry the person they love regardless of sexual orientation; however, as an elected official, under oath I am sworn to uphold the law as written, even when those laws are in direct conflict with my personal beliefs…I have a lawful duty to administer laws and policies regardless of when they are contrary to my personal beliefs.”
Colorado’s Attorney General and City Clerk are acting in a way consistent with both state and federal law by upholding the laws of their state regardless of their personal views. That is what living in a Republic and democracy are founded upon. Unfortunately Oregon is not as fortunate to have an attorney general willing to abide by the law.
Oregon Attorney General Ellen Rosenblum is the most recent to say she will not defend her state’s marriage protection amendment. Rosenblum recently wrote:
“State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review.”
In other words, the attorney general of Oregon just told people that her office will not defend state law because she doesn’t think the law can withstand a challenge in federal court. Or, to put it another way, “Hey, any same-sex couples wanting to get married in Oregon should do so because the law won’t hold up in federal court since we’re not going to defend it.”
Focus on the Family Judicial Analyst Bruce Hausknecht said of this disturbing trend:
“Liberal-leaning attorneys general refusing to defend popularly enacted marriage amendments began with the examples set in California by its chief executives over Prop 8 and by the Obama Administration with regard to the Defense of Marriage Act. Their refusal to perform their constitutional duties to defend duly enacted laws, in order to achieve the redefinition of marriage succeeded — without any apparent negative political consequences to themselves…Combining such dereliction of duty by government executives with the eagerness of activist judges to make new law, we have reached an era in our republic where the democratic process itself has been hijacked by elites who wish to govern without regard to what the governed actually want.”
Pennsylvania. Virginia. Oklahoma. Utah. Oregon. The situations in these states cause further concern for what is happening in West Virginia right now. There is currently a challenge to the state DOMA law in federal court. While our Attorney General, Patrick Morrissey has said several times he will defend our DOMA laws, that does not guarantee that a judge won’t simply invalidate the law and open our state to marriage redefinition. Our lawmakers appear wholly unconcerned with the plight facing Mountaineers as they argue about water and introduce EHNDA bills for the umpteenth time. What this signals is that there is a very real possibility that marriage will be redefined in West Virginia in the near future.
We can conclude this will be the outcome in light of the silence and inaction from our lawmakers regarding the issue. If they desired to protect marriage from redefinition they would take action in the wake of the lawsuit in federal court. Since they have not only stayed silent but taken no action they are, by their inaction, signaling to those seeking to redefine marriage that they will not stand in the way.
West Virginia is currently a teetering domino waiting to fall. What is unclear is whether our lawmakers will defend the will of the people and refuse to let the mountaineer domino fall or whether they will do nothing and watch as we become the next victim in this sordid game. Perhaps the 2014 elections matter more than we think.