Posted on 12/22/2013 11:28:54 PM PST by 2ndDivisionVet
An 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.
This is the key error that runs all over our courts:
“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,”
by this error, that believes that mere “legal argument” held to certain standards, for the formulation of amending the Constitution via the concept of the “living constitution” is sufficient for establishing new “rights” that WE THE PEOPLE, the ONLY legitimate authors of our Constitutions, via our elected reprsentatives, have in fact NOT authored or approved our Constitution to contain.
We need an en masse impeachment of all such subversive judges.
How do they come to exist.
The above desrciption of how they think is very often how they are taught to think in our law schools.
To correct the judge’s error, the judicial thinking on “rights” should be ““To recognize a fundamental right, the court must determine that the right has been placed in the Constitution by acts of the people.”
“deeply rooted in the nation’s history and implicit in the concept of ordered liberty,” and as such is a fundamental right”
deeply rooted in the nation’s histroy?? phooey. the guy is nuts
and even if there was a shred of evidence for “implicit in the concept of ordered Liberty”, it remains up to the people, not the courts, to establish how and to what end a Liberty is recognized in law, or not.
Not according to God!
Is he claiming that since there's been no right to "homosexual marriage" during the nearly-quarter-millenium of this nation's history, we've had neither liberty nor justice prior to this?
IOW he believes the “born that way” myth.
behavior is immutable as skin color or needing a lung.
I wonder about his life.
Time to start closing law schools.
there is no reason for any state run law schools these days.
I hate them too, specially the lyin’ libs
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