Director, Commonwealth Policy Center
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It’s been a bad month to be a voter, and an exciting month to be an activist judge. Two judges struck down state constitutional provisions in Oregon and Arkansas defining marriage as between a man and a woman. Both state’s constitutional language had been approved by voters, but that mattered little to Judges Michael McShane and Chris Piazza.

Both judges used remarkably similar (and predictable) language in their decisions. The constitutional amendments were “narrow” and an encroachment on “equality,” according to these judges. Judge McShane wrote that government had “no legitimate interest” in maintaining the wishes of the voters in Oregon. Judge Piazza took it even further, declaring that “The exclusion of a minority for no rational reason is a dangerous precedent.”

That is indeed strong language as well as rather confusing. Until Judge Piazza struck down Arkansas' law, no minorities were being “excluded” from anything. To be excluded implies a object of exclusion. To say that minorities were being excluded from same sex marriage is factually incorrect, since no legal right existed anywhere in the state to same sex marriage. It would be the same to claim one were being excluded from the right to marry a sibling or multiple partners: There is no “right” from which to exclude anyone, since incestous or polygamous relationships do not constitute a bona fide marriage.

Furthermore, Judge Piazza’s claim that the constitutional amendment existed for “no rational reason” does not seem to be a good faith interpretation. Is he declaring the state’s majority of voters irrational? Is he arguing that the desire to protect the sociological integrity of child-bearing homes is an irrational desire? Or is he simply declaring that the phenomenon of state citizens voting to amend their constitution is irrational, as such business is better left to judges and federal institutions?

These two cases illustrate how far the arguments in favor of same sex marriage are willing to go. State constitutions? Just throw them out. Voter wishes? Irrational! What sets a truly “dangerous precedent” is the system of federal encroachment on state’s rights and voter activity to service a political viewpoint.