Gay Marriage and Judicial Supremacy

On December 20, 2013 a Federal judge overturned Utah's constitutional ban on Gay Marriage, stating that it violated the 14^th amendment of the United States Constitution. This decision was made by a single judge, but it overturned the work and will of more than 1.5 million Utahns, and a decision made by the Supreme Court which dictates that the states have the power to define marriage within their own jurisdiction. The gay marriage debate is many-faceted and has raised many question, not the least of which is (1.) Who has the authority to decide whether homosexual couples should be allowed to marry, and (2.) What should be the ultimate decision.

The federal judiciary has become arguably the most powerful branch of government in our constitutional republic. The US Supreme Court ruled in Marbury v Madison, that the judiciary had the power of judicial review; that is, to review and rule on the constitutionality of laws passed by the legislatures, both Federal and State, in the United States. While this ruling provides an extra check on the legislative powers, especially of Congress, it expands the power of the judiciary and leaves it virtually unchecked.

The judiciary is meant to be as apolitical as possible, and so is appointed and ratified by elected officials (except in Nevada,) and is as unaccountable to to anyone as a government official can be. This process is in and of itself a necessary check on the Judiciary to ensure that justice is accomplished, unbiased by popular opinion; but it becomes a problem when the individual judges, especially in the higher courts, assume more power than they were given, or become activist judges; especially where now they currently not only have the power to adjudicate trials but to adjudicate whether a law itself is valid, and to create new law under the doctrine of Stare Decisis. The 10^th District Court has the authority to make the decision they did, but that authority was assumed by another court's interpretation of the constitution, not by the constitution itself.

Another reason the Federal courts have been involved in the legalities about gay marriage is because, according to the constitution, each state is required to give “full faith and credit” to the actions of the other states. This raises problems when two women legally marry in a state that allows homosexual marriages, then move to a state that doesn't, which subsequently won't grant them the same privileges and exemptions given to heterosexual couples in said state, or if the couple wants to get divorced in a state that doesn't recognize their marriage. Any case relating to Constitutional provisions is in the jurisdiction of the federal court, however the U.S. Supreme court recently affirmed that the states have jurisdiction to define marriage.

Marriage is a very personal agreement between individuals, and some question whether government should even be involved in the process in the first place. But the fact is they are, and they make a lot of money from it. So because the government is involved it is necessary for the government to define what marriage is. Traditionally Marriage has been defined as a union between a man and a woman, but until recently, that was really the only form of marriage that anyone in society cared to make, and some would argue that because society has changed so should the definition.

Which brings us to one of the major disagreements of both sides: what is the purpose of marriage? Proponents of Straight marriage say marriage between a man and a woman is a union formed and government sanctioned because it is the best for protecting and raising children. They also argue that there are a plethora of studies showing that the social and developmental needs of children are best served by having a mother and a father, and that when either of these are missing the children suffer. Opponents argue that not all straight couples are able to have children, and that if that is the definition of marriage than infertile and aged lovers shouldn't be allowed to marry, neither should single parents be allowed to raise children.

On the other hand proponents of Gay marriage say that marriage is a committed relationship between any two people who love and are attracted to each other, and that they have a fundamental

right to marry who they love, that is protected by the 14^th amendment to the constitution, states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And the they also claim that the Supreme Court's decision in Loving v Virginia (June 4^th, 1967) sets a precedent of equal protection for homosexual marriages. In the decision Justice Warren wrote:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Opponents of this theory argue that this defines marriage solely by sexual fulfillment, and using this precedent to justify homosexual marriages leads to a host of unintended consequences.

One of the unintended consequences in this case is a group of stake holders that

often get overlooked: NAMBLA, or the North American Man/Boy Love Association, and other organizations like them. The state of Colorado recently legalized Civil Union for homosexual couples, which puts them on a status some of the same privileges as married couples, but not all. NAMBLA is considering suing the state for their right to a civil union between men and under-aged boys, legalizing statutory rape, so long as the man and boy loved each other. While pedophilia and other practices, such

as polygamy and bestiality, are abhorrent to today's society we must remember – argues the opposition – that so was homosexuality less than a hundred years ago; and if we redefine marriage to be a union of any two people who love and are attracted to each other, we essentially define marriage out of existence.

Because the issues surrounding the 10^th district court's overturning of Utah's Gay Marriage Ban are so varied, and so complex there is no simple solution. The Federal courts have jurisdiction over the matter because it's opponents claim it infringes on their constitutional rights, while the Supreme Court ruled that the states have jurisdiction to decide the issue. And the question of whether or not the ban should be upheld, regardless of who has jurisdiction, is just as difficult: people love each other and want to be married, why does anyone else have the right to tell them they can't be; yet at the same time the decision affects more than just those wishing to form homosexual relationships, including children and those who wish to form other kinds of relationships and unions.

Because the issue is so polarized, no matter what is decided someone is going to be hurt by the outcome. That being said, overall it seems that the least harm is done to society when the states are allowed to decide for themselves how to define marriage, while also finding a way to give full faith and credit to the marriages of other states. But if the activist judges in the federal courts continue stepping out of bounds, one possible solution is for the states themselves to keep asserting their powers by re-passing their legislation, or continuing to enforce it despite the court's ruling.

President Andrew Jackson wrote to John Coffee, after Georgia failed to comply with the supreme court decision in Worchester v Georgia, "...the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate." He is also said to have declared “John Marshall has made his decision, now let him enforce it!” In other words, the courts have no executive powers, they have no armies and no police force to enforce their rulings. While the right to ignore the decision of federal courts is not explicitly granted in the constitution, neither is the court's right to judicial review, and it could provide an essential check to the nearly unchecked judicial branch.

In regards to what decision ought to be made, I will postulate that law is meant to be a reflection of what society values, and it would seem that society has a choice at this point to value the protection of children and traditional morality; or to value the right of adults, and possibly minors, to be sexually fulfilled in a government recognized relationship. While it may hurt certain adults feelings and deny them some of the benefits that traditionally married couples receive, it is in society's best interest to value morality over sexual gratification, and the protection of the institution which results in the best reared citizens and the propagation of its race, over the supposed right to have a government recognized relationship of your choice.

The Supreme court may have stated that “marriage is one of the fundamental rights of man,” but it also states that this is so because it is “fundamental to our very existence and survival.” Though the path may create ripples, and even be one going upstream, the best solution is for the state of Utah to assert its sovereign power and declare, in the best interest of society, that marriage is between a man and a woman.