The Marriage Mandate of the Federal Courts

The federal courts are on a rampage to strike down any semblance of state action declaring marriage to be exclusively a union between one man and one woman. The Montana Constitutional amendment, enacted by a vote of the people was struck down on November 19, and the ruling was made effective immediately.

gavel scales law books

The District court order cited a 9th Circuit court of appeals decision striking down similar amendments in Idaho and Nevada. According to CNN, the judge had the following to say:

“This decision overturns a Montana Constitutional amendment approved by the voters of Montana. Yet the United States Constitution exists to protect disfavored minorities from the will of the majority,” the judge said.

Morris added: “The time has come for Montana to follow all the other states within the Ninth Circuit and recognize laws that ban same-sex marriage violate the constitutional right of same-sex couples to equal protection of the laws.”

It might have been more accurate for Morris to say that, “The time has come for me to force Montana to give into the federal edict imposed on Idaho and Nevada.” Now the common understanding is that same sex marriage is protected in the state of Montana.

[See also, “Our Intelligence has been Stolen. We Want it Back.”]

This recent decision highlights a singular critical flaw in our federal court system. The courts have no idea what their function is. And they have no idea what the appropriate extent of their authority is. Sir William Blackstone, in his Commentaries, describes the law and the role of the court in interpreting the law in the following words:

But though this is the most likely foundation of this collection of maxims and customs [i.e. the law], yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach: nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long established custom. Whence it is, that in our law, the goodness of a custom depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runs not to the contrary. This it is that gives it its weight and authority: and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom.

According to Blackstone, the law is the law because it is old; it is old and of such common use that no one can remember it not being law. With this understanding of law, it is the court’s role to trail culture and not move culture. The value is in maintaining stability in culture. Again, Blackstone opines:

For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.

If we apply Blackstone’s philosophy of the law to the issue of same sex marriage, we would be presented with an entirely different reasoning and it would follow something like this.

  1. Is it possible that at the time the Equal Protection Clause was written that anyone in their right mind would consider marriage to be subject of the Equal Protection scrutiny? Absolutely not. Marriage as a union between one man and one woman was foundational to the fabric of the Founder’s culture. There would have been no one who would have thought that marriage rights should be extended beyond that limited scope. First, there was no need to adopt the amendment to begin with. Second, there should be no understanding of a change in the Equal Protection clause that should move a court to change the status quo.
  2. If special benefits provided to marriage by the federal government have created a situation in which there is now some violation of Equal Protection, what does that say about the special benefits? The special benefits provided to marriage are the violation of Equal Protection and not the restated limitation of marriage being a union between a man and a woman. The courts are making the logical error of permitting some benefits to pass by their scrutiny and then using those unrecognized errors as infrastructure on which to engineer a corrupt legal analysis. If anything is to be struck, it should be the special federal benefits provided to marriage.
  3. If the Montana Constitutional amendment is flawed, what should be the result of striking down Montana’s Constitutional amendment? The state of the law should return to what it was before passage. Marriage should be recognized as a union between one man and one woman. To now say that the court’s action makes same sex marriage legally protected allows the court to legislate positive law by simply negating a different positive law.

The court has an agenda and is simply trying to achieve his agenda as his words suggest.


David Linton writes at the Blackstone Initiative.