Thursday, February 27, 2014

They Can’t All Be Activists

Yet another state ban on marriage equality has been knocked down, this time in Texas.  The ruling was from District Judge Orlando Garcia.  In December, Utah’s ban was overturned by District Judge Robert J. Shelby.  Since then, Oklahoma and Virginia have seen their laws overturned by District Judge Terence C. Kern and District Judge Arenda Wright Allen respectively.

As the Religious Right will tell you, they’re all activists: unelected dictators ignoring the will of the people to write laws from the bench, and they have no right to impose their elitist will on the rest of the country.

What’s more likely is that these four judges all saw the same thing: state laws that targeted a segment of the population for discrimination without proving that their behavior or intentions jeopardized anyone else or that the state had an overriding interest in preventing marriage between two people.  That makes them unconstitutional according to the United States Supreme Court, and they ruled accordingly.  That’s not activism: that’s how the judicial system is supposed to work.

What’s ironic is that this all could have been avoided if the Religious Right hadn’t pushed through the federal Defense of Marriage Act in 1996.  It was done so at a time when same-sex marriage was barely on the radar of anyone and the likelihood that it would ever come to pass was as remote as Liberace winning the Mr. Universe contest.  But pass it they did, leading to the court challenge and the ruling last summer by the Supreme Court, specifically citing the equal protection clause.  That precedent — as well as Justice Scalia’s prescient dissent — is the basis for the rulings from the four District courts.