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Same Sex Marriage Decisions: The Constitution Protects Gays But Not Blacks and Women

Frank Turek
Frank Turek is an award winning author and speaker.

Your vote counted. No it didn't.

Last week, one unelected judge, overturned the will of 1,317,178 North Carolinians when he declared North Carolina's definition of marriage in violation of the United States constitution. Judge Max Cogburn, appointed by President Obama, said that the definition 61 percent of voters approved just two years ago violated the "equal protection" clause of the 14th Amendment—the same rationale used by judges elsewhere to violate the expressed will of the people. This is beyond absurd.

It's absurd rationally because everyone already has equal marriage rights. Every person has the same equal right to marry someone of the opposite sex. That law treats all people equally, but not every behavior they may desire equally. Same sex marriage and natural marriage are different behaviors with different outcomes, so the law rightfully treats them differently. One behavior perpetuates and stabilizes society, and the other doesn't.

These rulings are also absurd constitutionally. The 14th Amendment of the U.S. Constitution was passed in 1868 to prevent states from discriminating against newly freed slaves. At that time blacks and women didn't even have the right to vote, yet no one ever thought a court could use the "equal protection" clause to change state voting laws. So why do courts think they can use it now to change state marriage laws? Are we to believe that "equal protection" does not guarantee a woman's right to vote but does guarantee a woman's right to marry another woman? What planet are these judges ruling from?

Why do you think the Federal and State governments went through the arduous constitutional amendment process to give blacks and women the right to vote? Courts knew they couldn't act as legislatures to fix the problem. Congress and State legislatures had to vote to add the 15th and 19th Amendments in 1870 and 1920 respectively.

There was no rational case to preclude people from voting because of their race or sex. But there certainly is a rational case to preclude changing marriage. It's the one institution best capable of creating and then raising children by encouraging their mothers and fathers to stay together. It's the basis of a civilized society. We can't build and maintain a civilization through homosexuality or by equating it to what moms and dads do. You may claim that's bigotry, but it's really just biology. (Sorry, I didn't set up the facts of nature. I have noticed, however, that conservatives attempt to change their behavior to fit reality, while liberals attempt to change reality to fit their behavior.)

Anyone who wants to change laws should convince their fellow citizens to do so at the ballot box, not through unelected judges. Unfortunately, activist judges won't honor the ballot box. 41,020,568 people across more than half the states have voted to recognize marriage for what nature's design says it is—the union of one man and one women. Yet just 23 unelected judges have overturned those 41 million people across about 20 states! I don't care where you stand on the marriage issue: when 23 people substitute their personal policy preferences to overrule those of 41 million Americans, we are no longer free or equal.

Of the approximately 30 states that now have same-sex marriage (it changes every day), only one state has done it through popular vote (Maine). The people of Maryland and Washington narrowly voted not to overrule the same-sex marriage provisions their legislatures had approved. Eight laws were changed by state legislatures without popular input. Activist judges overruled the people in the remaining states.

As unwise as I think changing the institution of marriage is, I can at least respect the process when it is done democratically. For all their talk about equality, the other side does not respect democracy unless the vote comes out their way.

What do you think would happen if some federal judge wrenched a passage of the Federal Constitution out of context and summarily struck down Maine's law democratically decided law approving same-sex marriage? Do you think the people preaching "tolerance"—including their cheerleaders in the media—would tolerate such judicial abuse? The airwaves would be blasting howls of unfairness and calls for judicial impeachment. Yet when the same thing is done to strike down marriage laws based in biological reality—laws passed by millions of voters—liberals celebrate that those voters have been disenfranchised. Saying that one judge's vote counts more than the votes of millions of Americans is an unequal way to advance "equality."

"Oh, but the Constitution evolves," some say. "We don't have to look at what was intended in 1868."

If that's the case, then why have a constitution at all? If judges can make the law say anything they want, then how can we govern ourselves? We can't. It also means that none of our rights are secure (including new-found "rights" to same-sex marriage). What's to stop some rogue judge from taking away your freedom of speech or religion because the constitution has "evolved" in just the way his liberal mind desires?

Oops, that's already happened, as many bakers, florists, photographers, and conscientious people in other businesses have discovered. If you don't agree to celebrate same-sex marriages, you will be sued, fined, fired, and perhaps even jailed. All in the name of "tolerance, inclusion and diversity."

And parents, don't think you have the right to educate your children with certain moral values in public schools. Same-sex marriage ends your parental rights there as well.

What? You voted and your values won? Sorry, your votes don't count. Some people get more "equal protection" than you do. A judge said so.

The truth is, nowhere does the Constitution say that the courts are the final word on what laws mean or what laws are valid. We have three co-equal branches of government. We also have a federal government that is constitutionally subordinate to state governments on most issues, including the issue of marriage as even the Supreme Court has recognized.

America needs a state governor who still believes in America—a governor willing to take a page from President Andrew Jackson who once rebuffed a Supreme Court decision against the state of Georgia by telling Chief Justice Marshall, "John Marshall has made his decision; now let him enforce it." He called the decision "stillborn."

America needs an Andrew Jackson governor—as statesman who peacefully but firmly tells the court, "Your decision violates the Constitution and the rights of my citizens to govern themselves. It will not be enforced in this state. If you want to change our laws, then respect our people and our Constitution by convincing us to change our minds in the voting booth."

While that may create a constitutional crisis, our Constitution is already in crisis! What can be lost that hasn't ready been lost? We will not regain our right to self-government or maintain ordered liberty if we continue to cede all power to the judicial branch or to the federal government.

Are there any statesmen left in America?

Frank Turek is the president of, coauthor of I Don't Have Enough Faith to be an Atheist, and the author of the new book Stealing from God: Why atheists need God to make their case.

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