The following was written by Jeff Allen.
Judge Paul J. Kelly, Jr. (Photo credit: BarbWire.com)
Finally, a federal judge has jumped off the homosexual bandwagon that is disastrously plunging our country over the moral cliff. By rejecting the absurd argument that the 14th Amendment guarantees a right to counterfeit “gay marriage,” this astute judge wisely refused to rewrite the U.S. Constitution.
The 10th Circuit Court of Appeals panel commandeered the Constitution by creating a right to sodomy-based marriage in Utah on Wednesday. However, Judge Paul J. Kelly, Jr., who wrote the excellent 21-page dissent to the majority opinion, held that forcing states to recognize genderless “marriage” by overriding the will of the people and their duly elected representatives “turns the notion of a limited national government on its head.” Instead, he argued in favor of the democratic process, rejected the judicial abuse of the 14th Amendment, and issued a warning about the slippery slope.
In an article entitled A Crack in Legal Unanimity for Gay Marriage, Associated Press political reporter Nicholas Riccardi perceptively noted that this ruling marked two historic firsts:
Wednesday’s gay marriage ruling contained two historic firsts: It was the first appellate decision for gay marriage since the U.S. Supreme Court struck down the Defense of Marriage Law exactly one year ago, and it also marked the first time since then a federal judge has argued for keeping a state ban on same sex marriages.
Judge Paul J. Kelly, Jr. was in the minority in his opinion as the two other judges on the 10th Circuit Court of Appeals panel found the U.S. Constitution protects the rights of gay couples to marry. Kelly has broken the string of 16 state and federal judges who sided with gay marriage advocates in cases across the country over the past year.
Judge Kelly, who presided over the high-profile appeal of Oklahoma City bomber Timothy McVeigh, was a Republican appointee of President George H.W. Bush in 1991. In his vigorous dissent, he cautioned his colleagues against judicial overreach in striking down the voter-approved natural marriage amendment to the Utah state constitution. For those who know this courageous judge, his decision was consistent with his judicial temperament. “He’s not afraid to be the only guy taking a position if he believes it’s correct,” said former New Mexico Attorney General Hal Stratton who served with Kelly in the state legislature during the late 1970s.
In the past Kelly has been “sympathetic to some plaintiffs alleging discrimination based on their gender or disabilities,” Riccardi said. Therefore, his recent decision should not be summarily dismissed as the rantings of anti-“gay” bigot. “He may have a more limited view of the role of the federal courts than a more liberal judge,” stated Blain Myhre, a Denver appellate attorney who has argued numerous cases in Kelly’s courtroom, but he also insisted, “I don’t view him [Kelly] as an ideologue.”
In his well-thought-out dissent, Kelly decisively rejected judicial supremacy and defended the right of states to regulate it. He wrote, “If the states are laboratories of democracy, requiring every state to recognize same-gender unions — contrary to the views of its electorate and representatives — turns the notion of limited government on its head.”
Acknowledging the far-reaching impact of marriage policy on the public, Kelly contended that it’s “not a difficult question of constitutional law at least when it comes to the states’ right to enact laws preserving or altering the traditional composition of marriage.”
“The Constitution is silent on the regulation of marriage, that power is reserved to the states, albeit consistent with federal constitutional guarantees,” he indicated.
“We should resist the temptation to become philosopher-kings,” he further warned, “imposing our views under the guise of constitutional interpretation of the 14th Amendment.”
“To the extent that there is no right to same-gender marriage emanating from the 14th Amendment, a state should not be compelled to recognize it,” according to Kelly.
Furthermore, Kelly underscored the dangerous logical conclusion of the ruling authored by his 10th Circuit colleagues, warning that if “marriage is a freestanding right, Utah’s prohibition on bigamy would be an invalid restriction.”
“And while the court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender,” he maintained in his written dissent. “Indeed, the court has been less solicitous of plural marriages or polygamy.”
That such a decision will inevitably usher our nation down the slippery slope of deviancy was likewise emphasized when Judge Kelly continued, “Were marriage a freestanding right without reference to the parties, Utah would be hard-pressed to prohibit marriages for minors under 15 and impose conditions for other minors.” And the judge’s insightful assertion is as prescient as it is perceptive; The same legal reasoning that is currently being employed by the “gay marriage” advocates and their attorneys will certainly be utilized, and in fact already has been, to argue for polygamy and lowering the age of consent in an insidious effort to legalize pedophilia.
Most importantly, as Riccardi noted in his AP column, “The dissent heartened gay marriage opponents, who saw a hope of ending their year-long losing streak and puncturing the aura of inevitability that now surrounds same-sex marriage.”
“We are at a new level and the Courts of Appeal tend to be more thoughtful and deliberate than the trial courts,” responded John Eastman, president of the National Organization for Marriage. Like other conservative court observers, Eastman is optimistic that more judges will follow Kelly’s lead and exercise greater judicial restraint in the future.
Homosexual activists may be celebrating Wednesday’s decision as an important victory in the decadent march towards the imposition of their aberrant agenda upon our nation, but Judge Kelly’s dissent suggests that the legal battle over marriage may be far from over. The question will likely return to the Supreme Court, and we can only hope that reasoning similar to Kelly’s will ultimately prevail in our nation’s highest court.
