Undermining Marriage in Colorado and Oklahoma

In 2006, Colorado passed an amendment that affirmed marriage as the union between one man and one woman with 56 percent of the vote.

Last December, the Tenth Circuit ruled that Utah’s law affirming marriage was unconstitutional, but the U.S. Supreme Court issued a stay pending an appeal. Colorado falls within the Tenth Circuit’s jurisdiction; however, a county clerk in Boulder issued “marriage” licenses to homosexuals in violation of the stay order. A state court refused to stop the clerk, but the state’s highest court did.

Colorado’s attorney general said, “No matter one’s views on the issue of same-sex marriage, the Supreme Court of Colorado has made clear that until it has had a chance to rule on the merits, clerks must enforce the state’s laws, which are still in effect.”

In Oklahoma, a three-judge panel of the Tenth Circuit struck down a law affirming marriage as the union between a man and a woman. Over three-quarters of voters in that state chose to affirm marriage, and three people nullified the vote. Just like that. From Life News:

Republican Gov. Mary Fallin, who strongly supports the marriage amendment, slammed the court’s decision in a statement, accusing the 10th Circuit of overstepping its bounds and engaging in judicial activism.

“Today’s ruling is another instance of federal courts ignoring the will of the people and trampling on the right of states to govern themselves,” Fallin said. “In this case, two judges have acted to overturn a law supported by Oklahomans.” She vowed that the state would “fight back against our federal government when it seeks to ignore or change laws written and supported by Oklahomans.”

Justice Paul Kelly said the issue is a matter for the legislature, not the courts. He’s technically correct. Lawmakers write the laws, not judges. But no act of the legislature can change what marriage is or what husband or wife means.

“Simply put, none of the Supreme Court cases suggest a definition of marriage so at odds with historical understanding,” he wrote in his dissent. “The Court has been vigilant in striking down impermissible constraints on the right to marriage, but there is nothing in the earlier cases suggesting that marriage has historically been defined as only an emotional union among willing adults. Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. …Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.”

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