Yesterday’s announcement that the Supreme Court will not hear Utah’s case concerning same-sex unions does not make these unions mandatory. The issue still falls within the reach of Governor Gary Herbert. Despite Judge Shelby’s ruling of December, 2013, marriage is a state matter, not a federal one. Utah spoke on the issue with Amendment Three to the Utah State Constitution, passed in 2004, which defines marriage as between a man and a woman, and our Constitution is not subject to federal judges. We can say “No!”
.The federal government has no authority to dictate this matter to us. Judge Shelby broke the law with his ruling in a classic example of illegal legislation from the bench. No judge should be allowed to break the law he took an oath to uphold. He, and other judges doing the same, should be removed from the bench.
We fought this issue by taking it to the highest court, asking that it intervene. They have refused. Now comes the hard part: we must tell the federal court system to “take a hike”. This is our business, not theirs. We could have said so at the time Judge Shelby ruled and then put muscle behind our position. Now we have to.
This issue goes back to the basics: who’s in charge? If the contract Americans signed with government 225 years ago puts the federal government in charge of marriage, Judge Shelby was within his duties. He’s a federal judge; he rules on federal matters.
What rights did we give the federal government? Article 1 of the Constitution spells them out. Minus the details, these are the duties we gave Congress: it is to collect taxes, pay our debts and defense costs, and borrow money. It must regulate immigration, bankruptcies and some commerce. It is to coin money and punish counterfeiters, standardize weights and measures, give us a postal system and grant copyrights. It is responsible for laws and crimes on the high seas, raising a navy and armies, and calling out the militia. It must pass laws to accomplish the above and is in charge of its home, the District of Columbia. In addition, it must establish a federal court system to rule on issues, but only those for which the federal government has authority.
Note that defining marriage was not on the list. Nor is it on the president’s short list: Chief Executive over the people and his branch of government, commander of the military, maker of treaties, chief diplomat for foreign countries, grantor of pardons and one who recommends (but does not lobby for) legislation.
By default, then, the states define marriage. Like a computer system, there’s a default setting in the national Constitution for anything new or unforeseen—the 10th Amendment. It gives any other responsibility to the states.
We’ve ignored this default setting for a century or more, allowing it to be repeatedly overridden. Past politicians and governors knew this would become a serious problem, but ran from their duties to protect a state’s right to make decisions. Now there’s a precedent established: states bellyache, roar, and capitulate. Many, both lawmakers and citizens, no longer realize the power a state has to set its course.
The federal government is daily taking on rights it does not have and authority it does not possess. Their refusal to back Utah’s Amendment Three gives a wink and a nod to judges in other states to follow suit. At some point, the states must stand against this encroachment or we will lose every right we have in local decision-making. It is the nature of power to increase itself until some force stops its momentum. The longer we wait to put the brakes on power grabs, the more force it takes to stop the runaway. We’ve waited too long, already.
Governor Herbert is not alone in facing this issue. Several other states: Indiana, Oklahoma, Virginia and Wisconsin, share our plight and their governors have the same dilemma. Each must decide what to do. If we don’t stand fast on this issue, our grandchildren lose both the right of every child to a father and mother but also their right to be governed by the rule of law. America stands on majority rule and the majority of Utahns want traditional marriage upheld. If the majority yields to the minority we change our system of government. Rule by the minority always produces tyranny.
As citizens of America and Utah, we have duties to our government and ourselves. Nothing in life is free—there is a payment due for everything we get. This includes freedom; it isn’t free. Freedom’s duty is to insist on obedience to law and then put power behind our word. To do otherwise gives permission to ignore the law. If we allow federal judges to strike down our Constitution in this matter, what will they strike down next?
It’s a very hard thing for a governor to stand up to the federal establishment. It takes a strong man and he needs the people to stand behind him. The activists destroying the law will be vocal on this, and unless those who want us to be governed by laws we choose speak out, Governor Herbert will think we don’t care.
It’s time to call the governor. Tell him to stand firm for Utah’s constitutional right to draft its laws on marriage and the family. His number is 801-538-1000; his email is . Speak now or you may have to forever hold your peace.