You may not have noticed, but we are in the midst of an age in which laws are being selectively enforced and upheld. President Barack Obama famously announced early in his administration that his Justice Department would no longer enforce the Defense of Marriage Act or even defend it in court. Republicans in Congress took on the task of defending the law but last summer the Supreme Court ruled that it was unconstitutional. When they did so, however, they also left the matter of defining marriage to the states. With increasing frequency, however, states that have attempted to do just that have had those laws defining marriage as between a man and a woman struck down as unconstitutional.
Today Texas became the most recent victim of activist judges overstepping their authority and completely reinterpreting the Constitution. Judge Orlando L. Garcia of United States District Court for the Western District of Texas ruled that the amendment to the Texas constitution passed by voters in 2005 and defining marriage as between a man and a woman violated the United States Constitution. Why? Because, he said, it demeans the dignity of homosexuals “for no legitimate reason.”
Part of Garcia’s ruling reads like this: “Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution.” According to a article published today by the New York Times, however, the state of Texas had reasons for defining marriage as between a man and a woman. “The [state’s] lawyers denied that Texas’ laws were rooted in prejudice, linking the bills instead to the state’s interest in protecting traditional marriage to promote procreation and child-rearing by a mother and a father in ‘stable and enduring family units,'” the article said. Apparently Judge Garcia does not consider those to be “legitimate governmental purposes.”
The Times also reported that the two gay and lesbian couples who sued the state insisted that the state’s ban “perpetuated discrimination and put a financial, legal and emotional burden on homosexual couples.” Texas Representative Warren Chisum responded to that assertion by saying, “I’ve never made any statement that this bill did not discriminate. This bill does discriminate. It allows only for a man and a woman to be married in this state and be recognized in marriage in this state.”
Chisum is right on the mark. The problem is, discrimination is not automatically wrong. Almost every piece of legislation discriminates. “To discriminate” is simply another way of saying “to distinguish.” There are laws all across the country discriminating against people driving 90 miles per hour on the interstate or even 45 miles per hour in a school zone; laws discriminating against people who want to take merchandise from the store without paying for it; laws discriminating against people from buying alcohol before turning 21 or voting before turning 18; and, for now anyway, laws discriminating against people who want to be in government-sanctioned relationships made up of one man and two women or one person and one animal or one adult and one child. In other words, laws discriminate all the time; if they did not discriminate there would be no reason to have laws at all.
I have not read the case’s briefs so I do not know exactly how the homosexual couples who sued claimed to have experienced legal, financial or emotional burdens as a result of the Texas law, but I cannot imagine their reasoning would hold up under much legitimate scrutiny. Fortunately Judge Garcia was wise enough to stay his ruling pending the appeal that will no doubt be coming forthwith. Hopefully the judges of the United States Court of Appeals for the Fifth Circuit, in New Orleans, where the appeal will be heard, will actually read the Constitution and realize that it does not protect or entitle homosexual marriage.
The other laws you have no doubt been hearing about lately are those state laws that are allowing the recreational use of marijuana. Interestingly, the New York Times also has an article on that subject today. Rick Lyman’s article begins like this: “A little over a year after Colorado and Washington legalized marijuana, more than half the states, including some in the conservative South, are considering decriminalizing the drug or legalizing it for medical or recreational use.”
What few people seem to be commenting on (though the Times did mention it) is that marijuana is still illegal under federal law. Article 6, Clause 2 of the United States Constitution, often called the Supremacy Clause, reads, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” There are many court decisions over the years that uphold the principle of the supremacy of federal law.
Why do I bring marijuana into the marriage discussion? Simply because both are examples of states making their own laws and in one instance they are permitted to violate the federal law without consequence and in another they are being told that the Constitution prohibits them from making their own laws even though it does not and even though nothing in the Constitution protects the right of homosexual marriage. Indeed given the absence of any federal definition of marriage the states clearly have the right to define it according to Amendment 10 of the Constitution.
In other words, states are permitted–even encouraged, I might say–to pass their own laws allowing what the federal law explicitly prohibits because the behavior being permitted is considered to be in line with a progressive or liberal change that those in power support. When states pass laws upholding or enforcing more traditional or conservative behaviors (like marriage) they are told they cannot do so. Here’s the bottom line: federal law prohibits the use of marijuana but states are allowed to permit it and federal law permits the definition of marriage as being between one man and one woman but states are prohibited from thus defining it. We have a very real problem on our hands; laws no matter mean anything beyond what those in power want them to mean.
President Obama has, by way, provided additional evidence for his own impeachment in his handling of the state marijuana laws. Despite the clear federal prohibition of the use of marijuana the New York Times reports that the “Obama administration has said it will not interfere with the rollout of legal marijuana in the states, as long as it is kept out of the hands of minors.”
Interesting, is it not, that Judge Garcia denied that the people of Texas have a right to define marriage as between a man and a woman even though they said it was in part an effort to protect children, yet President Obama has invited states to ignore federal law so long as they protect children when they legalize marijuana.
Don’t try to make any sense of it…it simply doesn’t make any sense.
THINKING OUT LOUD 