by Nathan A. Cherry
I recently wrote about the trend of attorney’s general refusing to defend the laws of the states that elected them to defend their laws. I commented that this trend was accelerated by President Obama and Attorney General Eric Holder refusing to defend DOMA. Once the president starts deciding which laws he will and will not defend it is just a matter of time before everyone else decides they can do it too.
Over the last year we’ve seen numerous attorney’s general decide not to defend state laws, while activist judges decide to strike down other laws. The latest in this trend comes from Kentucky where a judge said the state must recognize foreign gay marriages from other states. His declaration is in violation of Kentucky law, but that didn’t stop the judge from deciding to strike down the law and rewrite it according to his opinion. He reportedly ruled:
“…while the state did not have to conduct same-sex ‘marriages’ itself, it must grant full marital benefits to couples who live in the state but had nuptials conducted elsewhere.”
Obviously this judge didn’t pay attention to what happened in Iowa as a result of such egregious activism against the wishes of the people. Of the situation in Kentucky, Albert Mohler wrote:
“Once again, we face a federal court striking down a constitutional amendment that had been overwhelmingly adopted by the citizens of a state…Thus, those who argued that in Windsor the Supreme Court had effectively paved the way for legal same-sex marriage coast to coast are vindicated in their warnings. Justice Scalia offered that warning from his seat on the Court. Many others offered that warning from other sectors. Sadly, the warnings were validated even sooner than most had expected.”
Validated indeed. The door is now open in Kentucky not just to same-sex “marriage,” but also to polygamy and polyamory.
Mere hours after the Kentucky incident, and a couple of weeks after Virginia’s Attorney General declared he would not defend his state’s ban on same-sex marriage; a federal judge struck the entire law down. Just after the case was heard in court where others had stepped up to defend the law in the absence of the attorney general, this blow is reminiscent of similar cases in Oklahoma and Utah. Not to mention Nevada, the latest state to fall to the 9th Circuit’s abysmal ruling.
In the Virginia case the judge wrote:
“The court is compelled to conclude that Virginia’s marriage laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry. Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.”
The judge has ignored the very public consequences of the private choices made by individuals and society’s compelling interest in guarding against those public consequences. Such consequences include the decline of morality based laws in light of arbitrary opinion based laws which will produce a nation that is less free than it is today.
What is most troubling to me regarding these cases is the fact that people sworn to uphold the laws of their states have decided they will instead take the law into their own hands and do with it what they want. What if every citizen did the same? What every citizen should be concerned about is the other laws attorneys general and judges will decide to strike at whim? What about 2nd Amendment laws? What about first amendment or fourth amendment laws?
After the attorney general in Virginia decided to abdicate his responsibility and go against his sworn duty by refusing to defend the laws of his state, I had a Twitter conversation with a lawyer here in West Virginia. He wondered if the attorney general was doing the right thing by refusing to defend an “unconstitutional law”? First of all, a law defining marriage as the union of one man and one woman is not unconstitutional. It is adhering to the traditional, historic, and moral definition of marriage; nothing unconstitutional about it. Second, as I told the layer, if the attorney general feels this is an unconstitutional law he has every right to fight it in court and seek to have it changed. But, and this is important, if attorney’s general are somehow justified in refusing to defend certain laws because they are opposed to them, the result will be anarchy and chaos. It will also lead to arbitrary defense of laws based on who the attorney general is. Suppose one AG can fully support the 2nd amendment and another cannot. I guess gun laws in that state will go back and forth a few times. Suppose another AG believes in life and another supports abortion. I guess laws relating to life in that state will be a battle depending on who is in control. Citizens will constantly be in the middle of a tug of war based solely on who is in office; never truly knowing what their Constitutional rights are.
You see, the Founders sought to protect against this sort of arbitrary defense of law by separating the powers and creating checks and balances. But, when the president ignores this separation and the checks and balances and instead threatens to use his “pen and phone” to do what he wants without Congress, all others – state and local governments – will no doubt take a cue from him and do the same. What do we end up with: a recipe for anarchy and eventually marshal law or tyranny?
Just the fact that the Obama Administration is ignoring state sovereignty to define marriage and creating two contradictory regimes is further proof that our government is out of control.
The bottom line is that neither attorney’s general nor judges should feel justified in striking down laws at will. There is a process in place for changing the law and everyone, the president included needs to follow that process. That is how a civilized nation conducts itself. What is the point of conducting ballot initiatives if a judge can decide he doesn’t like it and strike it down? Does the will of the people mean anything?
Say what you will, but this appears to me to be a deliberate attempt to lead our nation further away from morality based laws toward a system of law that is increasingly dictatorial. In other words, those with the power will get more powerful while the rest of us are reduced to serfs. This is what our Founders feared and attempted to keep us from. Our apathetic attitude over the last century has resulted in a very real threat to our Constitutional freedoms and liberties.
Oklahoma, Utah, Virginia, Kentucky, Nevada, what state will be next. Perhaps it will be Wet Virginia. Currently, a challenge to our DOMA law is in federal court. While our lawmakers tell us not to worry and that marriage redefinition will never come to the mountain state, a very real possibility exists that it will. Just one judge can invalidate our law and open West Virginia to legalized same-sex “marriage.” Have you heard one lawmaker talk about this issue? Has one state lawmaker or news venue covered the case?
The silence is deafening as our lawmakers seemingly ignore the defense of marriage.