(Austin, TX) We’ve seen this happen in California, Kentucky, Ohio, Oklahoma, Virginia, and Utah were victims of Federal judicial tyranny dealing with their marriage laws.  Texas now joins that list.  A federal judge today struck down Texas’ constitutional amendment defining marriage and marriage law.  Federal District Court Judge Orlando Garcia after making his ruling placed a stay on his own ruling pending the expected appeal.

AP writes:

Judge Orlando Garcia issued his ruling in Austin in response to a challenge by two gay couples of the state’s 2005 constitutional amendment, which had been approved by 76 percent of voters, and a 2003 law banning gay marriage.

Garcia’s decision, however, rejected the argument by the office of Texas Attorney General said each state has the right to define marriage as best fits the traditions of its citizens. Texas also argued that traditional marriage best supports the state’s interest in the area of procreation and child rearing.

"After careful consideration, and applying the law as it must, this Court holds that Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process," Garcia wrote in a 48-page opinion. "Texas’ current marriage laws deny homosexual couples the right to marry, and in doing so, demean their dignity for no legitimate reason."

He continued that regulation of marriage "has traditionally been the province of the states and remains so today," but that "any state law involving marriage or any other protected interest must comply with the United States Constitution."

"Today’s Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent," said Garcia, who was nominated to the federal bench by President Bill Clinton in 1994. "Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution."

This is what makes the Supreme Court decision not to rule on California’s Proposition 8 frustrating.  In SCOTUS’s ruling overturning DOMA Justice Anthony Kennedy wrote noting the difference between New York law and Federal law, “Marriage laws may vary from State to State, but they are consistent within each state.  DOMA rejects this long-established precept.”

No such issue exists in Texas.  Kennedy continues.

But the Federal Government uses the state-defined class for the opposite purpose—to impose restrictions and disabilities. The question is whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment, since what New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect. New York’s actions were a proper exercise of its sovereign authority. (emphasis mine)

If New York’s actions were a proper exercise of its sovereign authority can not the same be said of Texas?

“DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states,” Kennedy also wrote.

The unquestioned authority of the states. 

In terms of the Constitution, there is no “right to marry.”  Our founders never envisioned a federal role.  Judge Garcia is inventing a right.  Regarding Supreme Court precedent, the danger of the SCOTUS ruling was that it was made based on the 5th Amendment and not the 10th.  Even though Kennedy affirmed the state’s role in defining their marriage laws.

Perhaps ruling on California’s Proposition 8 would have provided some additional clarity.  Who knows?  Ultimately regardless of what the Supreme Court decided in that they can not overrule natural law.

This is clearly a violation of it.  I know some would say the state should be out of the marriage business altogether.  I sympathize with that position, but I doubtful we can rewind.  Today’s decision does bolster the case for a Federal Marriage Amendment or at the very least judges who respect the 10th Amendment.

Texas voters were just disenfranchised by a Federal judge.

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