Stop Saying Same-Sex Marriage is the 'Law of the Land'

Recently, Donald Trump was asked if the Kentucky clerk of Rowan County, Kim Davis, should issue same-sex marriage licenses.  The Donald responded, "It's the law of the land."  The purpose of this piece is to assist the Republican candidates in seeing that there are better options than agreeing with the left on this sea change issue.

Ever notice that radical leftists never say, "It's the law of the land" when speaking of a national law they fundamentally disagree with?

Barack Obama and the Defense of Marriage Act is a glaring example.  DOMA was the law of the land, but Mr. Obama's Justice Department refused to enforce the law, and the Department was the only agency responsible for its enforcement.

Curiously, the establishment press didn't draw attention to Obama's blatant dereliction of duty over DOMA.  The press did not assert that the Justice Department was in "rebellion" and the executive branch had a "duty" to execute "the law of the land" and "get over it."

When President Obama was asked about his non-enforcement of DOMA, his response was that he believed that it was "unconstitutional."  Well, do you think he had any role in it being declared unconstitutional by the Court in 2013?  As Obama was refusing for years to uphold the will of the people as expressed by bipartisan congressional law, public opinion was changing commensurately.  The media were on a nonstop pro-same-sex marriage propaganda campaign.  Certain states were changing the definition of marriage.  Homosexual couples were marrying, and Obama was golfing. All was well in Obamaland.

This piece could be filled with examples of President Obama's refusal to uphold the laws of the land (and even to obey direct federal court orders to his administration), but space doesn't permit.

Let's turn to some alternative responses conservatives can have to the question of whether Kim Davis should issue same-sex marriage licenses – instead of agreeing with the hard left that it's now the law of the land.

Governor Mike Huckabee's response is creative and shocks the automated thinking of jurists. Mr. Huckabee is pointing out that Kim Davis should not have been held in contempt of court because there is currently no law a court could order her to obey.  Mr. Huckabee asks the question: under what law does Kim Davis have authority to issue same-sex marriage licenses?

The argument is legally valid.  The judiciary's role is to decide individual disputes between parties.  The courts, including the U.S. Supreme Court, do not write laws.  The legal system sort of operates under the mistaken notion that all High Court rulings somehow automatically become the law of the land.  In many instances, however, laws have to be rewritten by the legislatures to comply with U.S. Supreme Court rulings.

Kentucky law has yet to be changed to redefine marriage and to authorize its local clerks to issue same-sex marriage licenses.  Until the Kentucky law is amended, clerks in Kentucky granting such licenses are doing so out of gratuitous deference, not legal obligation.  If U.S. District Judge David Bunning were to give this legal reality some honest reflection, he might get the cold sweats, because he wrongly held Ms. Davis in contempt and took away her liberty.

Gov. Huckabee's argument is a good one, but it's limited.  In addition to Huckabee's argument, there are a couple of really strong talking points (and action points) for Republican presidential candidates.

The United States Code, Section 455, states that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."  The law continues: "He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party ..."

Justices Elena Kagan and Ruth Bader Ginsburg had, prior to sitting and voting on the same-sex marriage case (Obergefell v. Hodges, 2015), officiated same-sex marriages.

That is no small issue.  The law says a judge "shall disqualify himself."  In other words, Kagan and Ginsburg were required to recuse themselves from participating in the case.  The law also states that even judges who had served as private lawyers "in the matter in controversy" must recuse themselves.  In such circumstances, judges might have an interest in the outcome if they had advocated for the matter in controversy.  What greater advocates of same-sex marriage can there be than those who have officiated same-sex marriages?

Can you imagine the protests the liberal establishment and activists would be having if two conservative justices refused to recuse themselves in the face of material bias, prejudice and impartiality?  If Kagan and Ginsburg had followed the law of the land, same-sex marriage would not be the "law of the land."

The Court's ruling is not valid for that reason alone.  State governments may reasonably consider the ruling void ab initio.

Finally, we need judges who will follow the U.S. Constitution as written.  As written, the Constitution strictly limits the jurisdiction of the federal government.

Getting the federal government back within the boundaries of the Constitution per the command of the 10th Amendment is as important as any issue facing the country (and it needs to be raised with vigor akin to Trump's raising of the illegal immigration issue).

The 10th Amendment reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

A quick review of the Constitution reveals that the powers actually delegated to the federal government are very few, indeed.

James Madison, known as the Father of the Constitution, informs us in The Federalist No. 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government.

Liberals, progressives, Marxist Democrats, or whatever you wish to call them often clamor about diversity, yet they really want central control out of Washington – the antithesis of American liberty.

The ongoing abuse of the Commerce Clause and the 14th Amendment to illegitimately expand federal power must end.

Instead of agreeing that same-sex marriage is "the law of the land," conservative candidates might want to remind reporters that 30 states went through the arduous process of amending their constitutions to protect their time-honored definitions of marriage.

Instead of agreeing with the enemies of traditional America, candidates might want to say that they are for diversity among the states, as the U.S. Constitution directs.

If the people of a certain state want same-sex marriage that's their prerogative.  If the people of another state wish to preserve their traditional morality and protect religious conscience, that is their right.  We don't have 50 provinces under the control of a central government.  We have 50 united states.

For a few men and women in black robes to nonchalantly overturn the will of the people is unacceptable and unconstitutional.  It's not the law of the land; it's an overreach and abuse of power.  In other words, as our founders would say, it's federal tyranny.

Monte Kuligowski is a Virginia attorney whose legal writings have been published in journals by the law schools at Duke, Virginia, Richmond, Samford, and St. John's.