The state of Utah has a law that defines marriage as the union of one man and one woman which a lower court has deemed to be unconstitutional. Utah is appealing the decision to the United States Supreme Court (scotus); but in all likelihood it will fail.
When Paul Clement agreed to defend the Defense of Marriage Act (DOMA) before the scotus he was advised that mounting the same defense as his predecessors would fail. Whether due to arrogance or because he took the case to ensure its failure, he ignored the advice and unsuccessfully made the same argument that had failed before.
There is only one viable approach by which Utah can prevail, but it requires Utah to want to succeed enough to take the scotus headon.
The power of scotus is founded in the United States Constitution (the Constitution); and articulated in the Judiciary Act of 1789 and subsequent revisions/amendments thereto. The Constitution nor the Judiciary Act empower the judiciary to amend, repeal or invalidate any Act of Congress; only congress, in which the Constitution vests “all legislative power” can repeal an Act of Congress.
The judiciary does not have constitutional authority to expedite or circumvent the legislative process so that the Defense of Marriage Act is in fact valid unless and until it is repealed by congress.
The court is responsible to ensure that state laws are not in violation of federal law. State laws enacted under the authority of the tenth amendment to the Constitution; consistent with an Act of Congress, such as DOMA, are valid in law and fact.
Utah must then assert to the court that discrimination, in and of itself, is not wrongful or unconstitutional.
In Dale v. Boy Scouts of America the court recognized that discrimination in and of itself does not violate the Constitution. In fact, the Judiciary Act of 1925 gave scotus the power to discriminate relative to appeals it would or would not hear; effectively denying some Americans equal protection without violating the Constitution due to the insulation afforded the scotus by an Act of Congress.
More recently, the court recognized discrimination within the Affordable Healthcare Act; which exempts certain employers from compliance based on an arbitrarily established minimum number of employees, did not violate the Constitution.
Congress, via the fifteenth amendment to the Constitution and Title VII of the Civil Rights Act articulated bases for discrimination which are wrongful and in violation of federal law; sexual preference, orientation, etc., are not listed among them; and, again, scotus has no constitutional authority to amend, expand, repeal or invalidate any Act of Congress nor the Constitution..
Further, precedent is not law. There is no constitutional provision for repeated, unchecked violations of the Constitution to be sufficient to establish law. Moreover, in Lawrence v Texas, the court demonstrated it has no compunction about overturning itself which means even the court does not consider precedent binding.
Records of the Constitution Convention reveal that the founders considered it improper for the courts to participate in the legislative process because it could not objectively rule on its own legislation.
It is a violation of the separation of powers for the judiciary to alter federal legislation.
If Utah has the heart to mount this fight, we will all win. It will be a win for state sovereignty and it will free us from the oppression of a seemingly omnipotent judiciary that is obviously incapable of exercising restraint from unconstitutionally imposing its views on Americans.



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