Obama-appointed judge: Same-sex marriage like interracial, ‘deeply rooted in nation’s history

US-Supreme-Court-PicAn Obama appointee to the federal bench ruled Friday that the right to same-sex marriage is “deeply rooted in the nation’s history and implicit in the concept of ordered liberty,” and as such is a fundamental right.

Judge Robert J. Shelby was appointed to the U.S. District Court for the Central Division of Utah in 2012 by President Obama, then confirmed by a Senate voice vote on Sept. 21, 2012, with neither debate nor objection, according to CNS News.

A federal district court is a court of original jurisdiction, but if its opinions are left unchallenged, they become the law for that district. Read the judge’s opinion here.

“To establish a new fundamental right, the court must determine that the right is ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [it] were sacrificed,” he wrote.

Shelby then applied the rule to same-sex marriage:

Because same-sex marriage has only recently been allowed by a number of states, the State argues that an individual’s right to marry someone of the same sex cannot be a fundamental right. But the Supreme Court did not adopt this line of reasoning in the analogous case of Loving v. Virginia. Instead of declaring a new right to interracial marriage, the Court held that individuals could not be restricted from exercising their existing right to marry on account of the race of their chosen partner. Similarly, the Plaintiffs here do not seek a new right to same-sex marriage, but instead ask the court to hold that the State cannot prohibit them from exercising their existing right to marry on account of the sex of their chosen partner.

The court attempted to liken interracial marriage to same-sex marriage.

“The alleged right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond,” Shelby wrote.

He added:

This right is deeply rooted in the nation’s history and implicit in the concept of ordered liberty because it protects an individual’s ability to make deeply personal choices about love and family free from government interference.

And, as discussed above, this right is enjoyed by all individuals. If the right to same-sex marriage were a new right, then it should make new protections and benefits available to all citizens. But heterosexual individuals are as likely to exercise their purported right to same-sex marriage as gay men and lesbians are to exercise their purported right to opposite-sex marriage. Both same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities.

U.S. Senate Majority Leader Harry Reid, D-Nev., pushed through a Senate vote last month killing the filibuster rule when approving executive appointments. Three Democrats — Mark Pryor of Arkansas, Joe Manchin of West Virginia and Carl Levin of Michigan — opposed the change, as did every single GOP senator, according to USA Today.

It will now be much easier for the president to remake the judicial branch into his own likeness. So expect more senseless rulings like Shelby’s.

Michael Dorstewitz

Michael Dorstewitz

Mike has been with BizPac Review almost from the beginning. Follow him on Twitter at @MikeBPR.
Michael Dorstewitz

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