Since marriage was redefined in Washington State two years ago, people in Washington State may not be paying attention to what is happening all over the country.
While the picture is not pretty, ignoring it won’t be helpful.
By way of quick review, last June the U.S. Supreme Court, in Windsor v. U.S., struck down the federal Defense of Marriage Act (DOMA).
While the court said it was not interfering with the thirty-two state constitutional amendments defining marriage as a relationship between a man and a woman, it was clear that within the bizarre decision was all the ammunition an activist judge would need in order to unilaterally overturn them.
Opponents of natural marriage have seized the opportunity.
In just the last few weeks, Arkansas, Idaho, Oregon and Pennsylvania have all had their marriage amendments struck down by federal judges.
The Oregon decision can’t even be appealed because no state official even defended the law in court. There’s no one to appeal.
You may remember that U.S. Attorney General Eric Holder, who refused to defend DOMA despite having the legal obligation to do so, told the state’s Attorneys General that they don’t have to defend laws if they don’t like them.
Oregon Attorney General Ellen Rosenblum followed his lead and refused to defend the marriage amendment passed by Oregon’s citizens.
As a result, the law in Oregon now requires a bakery to bake a cake for a same-sex wedding despite their conscientious objections but apparently doesn’t require the Attorney General to defend a Constitutional Amendment passed by the people in court because of her conscientious objections.
California has a similar situation.
Seven million people voted for a constitutional amendment that says, “Only marriage between a man and a woman is valid and recognized in California”.
California law requires a three judge appellate panel to overturn a provision of the state Constitution before it can be set aside. A prior Ninth Circuit appellate decision against marriage was vacated when the Supreme Court concluded that those defending Prop 8 did not have standing to do so.
As a result, there is no decision on the books of an appellate panel overturning Prop 8. The language defining marriage as a relationship between a man and a woman is still in the California Constitution today.
Yet, the state of California is issuing same-sex “marriage” licenses because the Governor and the Attorney General want to.
The judicial system has always had its challenges, but is this the moment America officially declares its independence from the rule of law?
Monarchs throughout history are smugly shaking their heads from the grave and whispering, “I told you so”.
You may think all this is wonderful because you like same-sex marriage, but just wait until a conservative judge, conservative plaintiff, and conservative Attorney General conspire to repeal a law you like by filing a lawsuit that no one defends.
Our system of checks and balances is sometimes frustratingly slow, but that’s intentional. It is designed to prevent three people from repealing laws they don’t like all by themselves.
We should all be careful about calling for swift action despite the law because we agree with the outcome.
History assures us that the time will come — maybe sooner than we think — when we’ll wish the system was a bit more deliberate and not so subject to the preferences of the two or three people who happen to be in power.
But it’s hard to slow down and worry about process when we’re so busy being historic.
In fairness, not every state is behaving as lawlessly as California and Oregon.
There are 17 states where lawsuits challenging one man, one woman marriages are in process but no decisions have been issued yet.
There are only 3 states left where no lawsuit challenging marriage has been filed: South Dakota, North Dakota and Montana.
That could change at any moment.
With the Oregon decision considered to be a “final” decree because there’s no one to appeal it, there are now 18 states plus D.C. where same-sex marriage is currently legal.
In addition, 12 states have seen their marriage law struck down but are in the process of appealing those rulings.
Recent developments are clearly not good for marriage, the rule of law, or the culture generally.
But this is far, far from over.
Our friend Ryan T. Anderson, from the Heritage Foundation, wrote a good piece today entitled “Where Do We Go From Here?” that offers good insights into next steps for those of us who will never give up on the value of natural marriage.
Whatever you do, don’t be afraid. We have all been placed in this time, at this place, for such a time as this. Let’s figure out what that is.
And never forget…truth wins.
“In this world you will have trouble, but take heart, because I have overcome the world”. John 16:33.
Note: The original version of this post has been edited to reflect the fact that there was a prior Ninth Circuit appellate decision against marriage that was vacated by the Supreme Court. The original version said that there has never been an appellate decision against Prop 8. While that is true for legal purposes and same-sex marriage licenses are being issued in California in violation of the law, it is not the entire story.