The Virginia Gay Marriage Decision: Even Worse Than You Think

Ranting about Judge Wright Allen's Virginia gay marriage opinion may clear the sinuses, but actually reading it to find out how she justifies her decision is much more useful. What becomes clear after even minimal exposure is that what we're dealing with isn't just a bad decision. Like many on the left Wright Allen ardently embraces procedural purity, sometimes. When the outcome's politically correct. For instance, standing. Standing's a hot issue right now, so it's quite interesting to see how Wright Allen manages to grant standing to a same-sex couple suing Virginia over its refusal to issue a marriage license for which they never applied. Oh, well, they're still the victims of "stigmatic" injury. That's the kind it's tough to describe because it's mostly in somebody's head.

And what about jurisdiction? If you think the Supreme Court should rule unequivocally that legalizing same-sex marriage is not a federal matter you'll be happy to know they already have, over forty years ago. In Baker v. Nelson (1972) SCOTUS issued a summary dismissal of a Minnesota case much like Virginia's "for want of a federal question." Wright Allen simply kisses it off, citing "doctrinal development." Imagine the outcry from the left -- including at least six current and retired members of the Supreme Court -- if a conservative district judge just waved bye-bye to an old-fashioned SCOTUS precedent to advance her up-to-date personal social agenda. Worse, if she justified her prank by insisting SCOTUS had been dragged into the 21st century by a District Court in Utah. And what about precedent? Apparently trying to prove that marriage is not only "a fundamental right" that must be granted everyone, but a boon to society, Wright Allen shamelessly trots out a parade of old-fashioned precedents affirming the wonders of marriage. Of course, all of them appear to laud "marriage" as it used to be: a doctrinally undeveloped, old-fashioned union between a man and a woman. Perry Mason would be on his feet shouting "Incompetent, irrelevant, and immaterial!" Or maybe Wright Allen would, if she were still hopped up on doctrinal development. But Raymond Burr is dead, and in this opinion irrelevance and self-contradiction are just persistent blemishes, a kind of legal acne. So the parade marches on to its inevitable destination. Denying same sex marriage is the equivalent of slavery, our judge is mortally offended, and so the (racist) Virginia law must go. Irrelevance begets false analogy, false analogy begets non-sequitur, and non-sequitur begets judicial activism. The irresistible logic of the left. And we thought confusing the Declaration of Independence with the Constitution was bad? Well, of course it is. Sort of, although "pathetic" seems the better word. But no more pathetic than Republican senators voting to confirm this judge. And dozens of others like her. Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback at edward.stewart27@yahoo.com.