Same sex. Different day

Randall Hoven
Three weeks ago, a federal judge ruled that a state (or in that case, four justices on a state's supreme court) can define marriage however it wants.  That is states' rights as enshrined in the 10th Amendment.  The Constitution demands it, even if federal money is dispersed in a state based on that definition.

This week, a federal judge ruled that a state cannot define marriage the way it's been understood for 6,000 years:  as only between a man and a woman.  The Constitution demands it.  This time it's because of the 14th Amendment, which was ratified in 1868.

"No state shall... deny to any person within its jurisdiction the equal protection of the laws."

So a state can define marriage however it wants, as long as that definition includes gay marriage.  It's in the Constitution.

Three weeks ago I warned Jacob Sullum and others who believed that the latest ruling strengthened states' rights and the 10th Amendment.  "You are a fool to think it does," I said.  "Call it cherry-picked constitutionality."

Three weeks ago the cherry was the 10th Amendment - a state can define marriage the way it wants.  This week the cherry was the 14th Amendment - a state cannot define marriage the way it wants.

You can't call the judges inconsistent, though.  They consistently support gay marriage and they consistently throw out laws passed by the rules of democracy and replace them with laws defined by judges.


Three weeks ago, a federal judge ruled that a state (or in that case, four justices on a state's supreme court) can define marriage however it wants.  That is states' rights as enshrined in the 10th Amendment.  The Constitution demands it, even if federal money is dispersed in a state based on that definition.

This week, a federal judge ruled that a state cannot define marriage the way it's been understood for 6,000 years:  as only between a man and a woman.  The Constitution demands it.  This time it's because of the 14th Amendment, which was ratified in 1868.

"No state shall... deny to any person within its jurisdiction the equal protection of the laws."

So a state can define marriage however it wants, as long as that definition includes gay marriage.  It's in the Constitution.

Three weeks ago I warned Jacob Sullum and others who believed that the latest ruling strengthened states' rights and the 10th Amendment.  "You are a fool to think it does," I said.  "Call it cherry-picked constitutionality."

Three weeks ago the cherry was the 10th Amendment - a state can define marriage the way it wants.  This week the cherry was the 14th Amendment - a state cannot define marriage the way it wants.

You can't call the judges inconsistent, though.  They consistently support gay marriage and they consistently throw out laws passed by the rules of democracy and replace them with laws defined by judges.