On December 20, on the eve of the nation’s Christmas break, an Obama-appointed federal judge launched a one-man coup against the state of Utah by unilaterally striking down the state’s constitutional marriage amendment — a law passed democratically by two-thirds of Utahans and shared in common with 33 other states.
In a 53-page ruling, which could best be described as a work of judicial fiction, District Court Judge Robert J. Shelby began by conceding that marriage law is “the province of the states,” but he proceeded to void Utah’s marriage law in a naked power grab that he admitted was not within his purview to do.
By the end of the ruling, Judge Shelby had overturned Utah’s definition of marriage by judicial fiat and replaced it with the one provided by LGBT activists.
The event was not an isolated incident. Within days, a federal district court judge in Ohio issued a similarly contrived judgment against that state’s constitutional marriage amendment. Moreover, according to the ACLU’s web site, copycat acts of judicial legislating are underway in Pennsylvania, North Carolina, Virginia, and a dozen other red states, as part of the group’s national “Out for Freedom” campaign against state sovereignty.
In his quasi-legal reasoning, Judge Shelby claimed that Utah, by defining marriage as a male-female institution, had “denied its gay and lesbian citizens of their fundamental right to marry” — a legal fiction that exists nowhere in federal law or America’s longstanding tradition.
The brazen act of judicial fakery drew statewide rebuke.
The Deseret News editorial board wrote that Shelby’s move to declare Utah’s constitution null and void was “the essence of judicial tyranny.”
Utah’s Office of the Attorney General denounced the ruling as without precedent: “The federal district court’s ruling that same-sex marriage is a fundamental right has never been established in any previous case.”
Governor Gary Herbert called the ruling anti-democratic, saying, “An activist federal judge is attempting to override the will of the people.”
The Sutherland Institute, an influential state policy group in Salt Lake City, urged the governor “to order county clerks to stand down in issuing marriage licenses” to gay couples.
Shelby’s attack on Utah’s state sovereignty raises a crucial question: How should America’s pro-marriage states respond to lawless acts of judicial tyranny?