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?
In the Kentucky Resolutions of 1798, Thomas Jefferson wrote, “Whenever the federal government assumes undelegated powers, its acts are unauthoritative, void and of no force.”
Alexander Hamilton warned that “acts of the federal government which are not pursuant to its constitutional powers … will be merely acts of usurpation, and will deserve to be treated as such.”
Translation for Utah and other pro-marriage states: Dismiss illegitimate federal rulings and continue lawful enforcement of state marriage laws.
The words of Jefferson and Hamilton should be on the lips of every citizen of Utah whose Tenth Amendment right to self-governance was usurped by the personal opinion of one rogue activist judge.
Indeed, when the two-thirds of Utahns who supported the state’s marriage law awaken from their holiday festivities and realize their constitutional sovereignty has been stolen, the phones at the offices of the governor and attorney general should ring off the hook.
The provocation has already stirred a hornet’s nest of angry opposition in the Beehive State.
In comments made to the Daily Caller, Gayle Ruzicka, head of the Utah Eagle Forum, sounded a clarion call for resistance: “The governor should say no. This federal judge was absolutely out of line. Somebody has to stand up and say ‘enough is enough, you’re not coming across our borders and doing this’.”
Sen. Margaret Dayton, a state lawmaker who voted to put marriage on the Utah ballot back in 2004, said the feds must keep out. “It’s a state issue, and this state has clearly defined what it expects for marriage,” Dayton told the Daily Caller.
While state lawmakers in Utah have begun discussing the need for a special session to rectify the situation, marriage and family leaders are calling on governors to enforce state marriage laws and ignore illegitimate judicial rulings.
“Our country has seen illegitimate decisions before, going back to Dred Scott. And in the past, when a court has fallen so far afoul of the Constitution itself, executives have had to stand up and say no,” Brian Brown, president of the National Organization for Marriage told the Daily Caller.
Ms. Ruzicka concurs: “We have to stand up and say no in each of our states. We need to work together to do it. The governor could do it today.”