A Further Perspective

Federal Judiciary—Still the Shock Troops of Cultural Revolution

Clueless Obama appointee provides the latest jolt.

By 2.19.14

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It is getting tiresome. The federal judiciary persists in its role as the shock troops of cultural revolution. What the social engineers cannot accomplish by legislation, presto-change-o, becomes the judge-made law of the land.

The extirpation of school prayer, forced school busing, abortion, expansion of the rights of the criminally accused — and now homosexual marriage: all are carried forward by the hubris of men and women with nothing but a legal education and the brass and power to impose their own policy and political judgments on their fellow citizens. If the idea of American constitutional exceptionalism is ever finally killed off, it will be the “least dangerous branch,” to use Alexander Hamilton’s phrase, which will have been the proximate cause.

The latest travesty emanates from Virginia where a federal district court judge, an Obama appointee and someone who only practiced in government (public defender, JAG, assistant U.S. attorney) has decided that the Commonwealth of Virginia’s constitutional requirement that marriage be between one man and one woman somehow violates the U.S. Constitution, or the Declaration of Independence, or something. In effect, the good judge redefines law, history, culture, morality and common sense.

She also confuses the Constitution with the Declaration in attributing the “pursuit of happiness” to the former rather than the latter. Not exactly a high point in American jurisprudence now, is it?

If the readers of this site will afford me an ecumenical indulgence, I would note the statement issued by the Catholic bishops of the Richmond and Arlington dioceses, Bishop Francis X. DiLorenzo and Paul Loverde.

The Catholic Church, of course, embraces both reason and revelation, the latter interpreted in light of tradition, and therefore presumes to opine on matters of morality that impact the public good. You may not agree with it, but it does not expect you to accept its arguments exclusively on religious grounds. It is willing, impelled in fact, to make the rational case for its moral and social views since, at the most basic level, it believes God is rational. It certainly does not denigrate or flee from the teachings of Scripture, but it is more than comfortable with rational discourse. Indeed, the Catholic Church may be the last institution still willing to engage society on the basis of reason and argumentation, not just emotion or sentiment, entitlement or “rights talk” grounded only in self-autonomy and personal preference.

Describing the recent decision, Bostic v. Rainey, as “a severe blow to the citizens of our Commonwealth,” the bishops note that Judge Wright Allen “has not only totally ignored our state’s rights under the Tenth Amendment to the U.S. Constitution, she has also redefined marriage to the peril and detriment of society.” Her decision “strips marriage of its intrinsic meaning and converts it into nothing more than an arrangement that recognizes a voluntary relationship between any two consenting adults.”

“While all people should have the freedom to form attachments and relationships as they wish, the union of a man and a woman, in marriage, makes a unique contribution to the creation, protection and well-being of children,” state the bishops. “It is more than a ‘consenting relationship’….It is a union that alone provides children the opportunity to be nurtured and to learn from both a mother and a father, each of whom brings unique gifts to the family, the fundamental building block of society.”

Say the bishops, “No religion, government or individual has the right or legitimate authority to alter the fundamental meaning and structure of marriage that has existed from the beginning of humankind. And certainly, no court decision, either in Virginia or elsewhere, can change that meaning.”

This last point is crucial and might be re-stated this way. Marriage is a pre-political institution, which is why the effort to redefine it, through legislation and litigation, is a violation of the rights and prerogatives of civil society, families, and, most importantly, children.

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About the Author

G. Tracy Mehan III served at the U.S. Environmental Protection Agency in the administrations of both Presidents Bush. He is a consultant in Arlington, Virginia, and an adjunct professor at George Mason University School of Law.