May 15, 2014
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The black robed tyrants of the Empire have struck again, this time in my home state of Idaho. And this time it’s personal.
Federal magistrate Candy Dale struck down Idaho’s marriage amendment yesterday, clearing the way for flatly illegal and unconstitutional sodomy-based “marriages” in the Gem State beginning Friday morning.
The sting of this is in fact personal for me, as I am a co-author of Idaho’s amendment. I worked diligently in late 2005 with other pro-family leaders in the state to carefully craft its language. Then together we worked with the Idaho legislature during the 2006 session, meeting with lawmakers and lining up testimony in committee hearings. The amendment received over 75% of the vote in both the Idaho senate and house, and went on the ballot that November.
I worked with these same pro-family leaders to strategize and conduct the campaign on behalf of natural marriage, which led to an overwhelming 63-37 victory for the amendment at the polls in November of 2006.
So for the better part of a year, we all invested heart, soul, blood, sweat and tears in the campaign to elevate protection for natural marriage to our state constitution.
This judge, acting with overweening judicial hubris and careless disregard for the Constitution and her oath of office, disenfranchised every Idaho voter represented in that 63% with one sweep of her paw. She treated this solemn amendment as if it were a used sandwich wrapper which she could crumple up and sweep into the trash.
In so doing, she shredded the concepts of self-governance, limited government, and the rule of law. All in all, not a good day for jurisprudence.
Her 57-page opinion is a remarkable mish-mash of sentiment, emotion and an utter absence of rational consistency. She grounds her ruling in the 14th Amendment and the incorporation doctrine, the fanciful and unsupportable concept that the 14th Amendment magically and mysteriously and without any congressional intent whatsoever applied the Bill of Rights against the states. (Clarence Thomas, by the way, eviscerates the incorporation doctrine in his concurring opinion in the Greece ruling on legislative prayer.)
But then Judge Dale turns right around in her ruling and admits, in a rare burst of candor, that “marriage is not mentioned in the Bill of Rights.” In other words, even if the incorporation doctrine were correct – and it isn’t – there is nothing here to incorporate.
Marriage cannot possibly be a right in the federal Constitution because marriage is not mentioned in there anywhere, and dictating marriage policy to the states is quite notably missing from the enumerated powers of the central government outlined in Article I, Section 8.
Quite simply, if we the people have not granted a power of action to the federal government in Article I, Section 8, the federal government has no moral, legal or constitutional right to exercise it. You will look in vain for any authorization to dictate marriage policy to the states, either there or anywhere else in our supreme legal document.
Thus, as even the Supreme Court recognized in its DOMA decision, marriage is an issue reserved to the states. Period.
The Court said in Windsor:
“By history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States…Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations…The State’s power in defining the marital relation is of central relevance in this case (and states possess) the historic and essential authority to define the marital relation.” (Emphasis mine.)
Ms. Dale thus not only defied the constitution of the state of Idaho and the Constitution of the United States, she defied the Supreme Court itself. Like all out of control, hubristic federal judges, she swings her gavel like a sledgehammer, pulverizing every precious liberty and right that gets in her way.
Idaho’s governor, Butch Otter, has always trumpeted his bona fides as a champion of liberty and of the Tenth Amendment. (He stood virtually alone in the Republican Party, for example, against the Patriot Act when he represented Idaho in Congress.) Now here’s an opportunity for him to prove his talk on the subject of the sovereign right of individual states was not just idle bloviation.
He should fulfill his oath of office, an oath he took before God, to uphold the constitutions of both Idaho and the United States by flatly refusing permission for any city or county clerks in the state of Idaho to issue licenses to same-sex couples. The people of Idaho have spoken, he should say, and I will fulfill the promise I made to them to uphold their constitution.
This would not even be civil disobedience, since there is no “law” to disobey. A judge’s ruling is not a law, it is a ruling and a ruling only. Such an act on his part would in fact be the ultimate display of civil obedience, obedience to the Constitution as the supreme law of the land, and would be the first step in returning America to the rule of law rather than the rule of men.
As the Founders frequently stated, “Rebellion to tyrants is obedience to God.” It’s about time for some governor to obey God by rebelling against judicial tyrants. Gov. Otter could make American history by being that guy.
(Unless otherwise noted, the opinions expressed are the author’s and do not necessarily reflect the views of the American Family Association or American Family Radio.)
© Bryan Fischer http://www.renewamerica.com/columns/fischer/140515