How to Resist the Obergfell Supreme Court (We need not, and must not, give in to Obergefell)

Justice Kennedy’s reasoning in Obergefell is fully encapsulated by his first line: Americans have a constitutional right “to define and express their identity.” Of course, this right is contingent on their defining only those things to which the Supreme Court is willing to ascribe “dignity,” in prose so purple it must be read with tinted glasses. On its face, the reasoning is as risible as it is contemptible. In this new, metastasized version of substantive due process, the business of adjudicating rights no longer demands analysis, only ascription.

The dissents are among the harshest, most dismissive, and most suggestive in the history of the Supreme Court. Justice Scalia opines that the Court has “descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” He says, “If I ever joined [such] an opinion . . . I would hide my head in a bag.” Alas, as self-governing citizens of a constitutional republic, we cannot get off so easily. We can neither run nor hide. Aphoristic reasoning of the sort Justice Kennedy has produced is owed nothing by the citizens it purports to control. We must offer resistance to a decision so patently ungrounded in the Constitution that the dissenters themselves suggest it is owed no deference. The Supreme Court cannot command our obedience when it has not earned our respect. As Daniel Webster said, “God grants liberty only to those who love it, and are always ready to guard and defend it.”

Scalia refers to the majority opinion as nothing more than “a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government.” It is “couched in a style that is as pretentious as its content is egotistic,” betraying the “pride” that “goeth before a fall,” as the Court moves “one step closer to being reminded of [its] impotence.” As Scalia avers, Federalist No. 78 argues that the Court has “neither Force nor Will, but merely judgment.” When a judgment is as profoundly silly as the present one, it is not an option but a constitutional imperative for the people and the officials they have elected, who pledge to uphold not the Court, but the Constitution, to offer their fullest measure of devotion to that document.

Justice Alito notes that had the Court followed its own precedents, it would have found that the “liberty” guaranteed by the due process clause protects only those rights “‘that are deeply rooted in this Nation’s history and tradition.’ . . . And it is beyond dispute that the right to same-sex marriage is not among those rights.” The new “right” is a product of judicial fancy, pure and simple. Furthermore, in substituting its judgment for the judgments of the state legislatures, the Court wrongly asserts that marriage is recognized by government for the sake of “the happiness of persons who choose to marry.” But marriage has been recognized and promoted by government for the sake of children, who are the natural result of “the one thing that only an opposite-sex couple can do.” And we should add to Alito’s observation what is often ignored or denied: Although not all natural couples choose to have children, or are capable of doing so, this does not alter by one iota society’s compelling interest in holding out as normative, and particularly desirable, the only type of sexual relationship that is capable of doing what is required for the perpetuation of society. Further, there is reason to believe, and common sense would suggest, that children fare best when raised by two married parents who model distinctively male and female traits and virtues.

Alito is also concerned with downstream consequences. In addition to being a usurpation, the majority decision will be used to “vilify Americans who are unwilling to assent to the new orthodoxy.” Alito cries out for political action to check rogue courts, which are afflicted by the “deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” More than anything else, the decision shows that “decades of attempts to restrain this Court’s abuse of its authority have failed.”

Justice Thomas notes that the decision “is at odds not only with the Constitution, but with the principles upon which our Nation was built.” The doctrine on which it is based, substantive due process, “exalts judges” — and a bare majority of judges at that — “at the expense of the People from whom they derive their authority.” Even if the doctrine were not erroneous to begin with, maintaining the age-old definition of marriage does not deprive anyone of liberty — which, constitutionally, refers to freedom from physical restraint. And even if the word liberty were erroneously interpreted more broadly than that, it would refer only to freedom from governmental action — not a right to it. By twisting the constitutional and philosophical meanings of liberty, the majority undermines the central moral and political truths of the American Founding: the right of the people to consent, or not consent, to their government and the laws it makes. Like Alito, Thomas is concerned about what comes next. The Court has undermined the right to religious liberty, which is threatened in myriad ways by the majority’s intensely anti-religious moralism masquerading as jurisprudence.

Even Chief Justice Roberts — as consumed as he is with maintaining respect for the Supreme Court and its judgments — did what was unprecedented for him, namely, reading a summary of his reasons from the bench. In his full judgment, he notes that the Court has taken the “extraordinary” step of ordering every state to license and recognize that which is contrary to what has persisted “in every culture throughout human history.” Yet, the “Constitution leaves no doubt” that such a step is inappropriate. By taking it, the Court turns the United States into a government of men rather than laws, based on “an act of will, not legal judgment.” The “pretentious” majority even “feels compelled to sully those on the other side of the debate” in an “entirely gratuitous” manner. They are characterized as people who “demean,” “stigmatize,” “disparage,” “disrespect,” and “subordinate” “their gay and lesbian neighbors.” In addition to the assault on religious belief and political liberty that these words portend, the Court — asserting no limiting principle to its jurisprudence of dignity — has made further bitter conflict inevitable, over a whole host of creative individual and familial claims.

Previous marriage cases — including Loving v. Virginia, which struck down a state ban on interracial marriage — “require a State to justify barriers to marriage as that institution has always been understood.” By contrast with laws banning contraception or sodomy, laws that maintain the timeless understanding of marriage “involve no government intrusion. They create no crime and impose no punishment.” The Chief Justice reminds the Court of the need for restraint in “administering the strong medicine of substantive due process” — a lesson first taught by Dred Scott. Most of the majority opinion, he suggests, does not even have “the virtue of candor.” And he asks — somewhere between plaintively and angrily — “Just who do we think we are?”

Make no mistake: The words of the dissenters are weapons thrown our way by defecting soldiers. If we don’t seize them to fight, we will show we are now incapable, and unworthy, of self-government. In seizing them, we will be in good company. Responding to Dred Scott, Abraham Lincoln said: “Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.” And what Lincoln said of Dred Scott applies precisely to Obergefell: If the decision “had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.” Lincoln would find Obergefell, as he found Dred Scott, “wanting in all these claims to the public confidence.” It is therefore “not factious” to claim it has not settled the law.

Admittedly, it would be best if the coequal branches of government at the federal level checked this astounding judicial usurpation, through the exercise of their constitutional prerogatives. Executive refusal to enforce an unconstitutional judgment would be the most obvious place to start, but cannot be expected in the present instance, both because of the current occupant of the White House, and because what the Court has done is usurp legitimate state, rather than federal, authority. But this power of refusal, and the constitutional authority of Congress to limit the Court’s appellate jurisdiction and to impeach judges, are each incidents of a sober departmentalism and among possible remedies, in the long run, for the problem to which the dissenters point. Members of Congress who care about the Constitution should at least be discussing these remedies. And they should also be encouraging state and local officials to act, since this is really their ballgame.

The risks of state action are as obvious as they are overblown. An exercise of legitimate constitutional authority at the state level would invite the tired, insincere, or ill-considered claim that any assertion of “states’ rights” is necessarily tainted by history. But constitutionalists are with Abraham Lincoln, not Orval Faubus. They do not reject, but embrace, the Constitution and its underlying claim of equal natural rights, including the right of the people to engage in self-government — not to mention to defend the English language against those who would conscript it for political purposes. They must remember just how flimsy is the solitary arrow in the quiver of Obergefell apologists: The Constitution is what the Supreme Court says it is. Such an arrow can be deflected by even the most lightly armed.

We should note that many of the measures advocated by opponents of Obergefell are doomed to irrelevance. Politicians who call for more or stronger laws to protect religious liberty at the state or federal level are on a fool’s errand. Any laws that purport to restore or guarantee such liberty are likely to be narrowed or eliminated at the first pressure from special-interest groups, or overturned by courts — which, we should recall, are the problem. Some scholars advise the appointment of justices who reject judicial usurpation of politics. But in so doing they rely on a bromide that, as Justice Alito reminds us, has proved an epic failure in slowing the growth of this cancer on our body politic.

So what must the states and their subsidiary units — governors, legislators, county officers — do to fire a shot across the bow of judicial supremacy? It’s a shot that should have been fired years ago, at the federal level. But here we stand. State and local officials, with the support of the people as a body and brave individuals as necessary, must now play the hand they have been dealt and pledge: No voluntary compliance — whether by states, their officers, or ordinary citizens — coupled with determined resistance. Specifically, the following measures are now necessary for all constitutional officeholders, with prudential adjustments as local circumstances dictate.

First, they must call out the Supreme Court as illegitimate insofar as it wishes to impose the will it has expressed in Obergefell. They do not have to get too creative to do this — quoting the dissents, and cribbing arguments from them, would be an excellent start. They must calmly but firmly demand resignations, suggest impeachments, and advise their federal colleagues to act against the Court, using the full constitutional arsenal available to them. In doing this, they would be taking a page out of President Obama’s playbook, when he very publicly called the Supreme Court to account in his 2010 State of the Union Address.

Second, they should not license same-sex “marriage” without further specific guidance from geographically and constitutionally relevant courts. After all, a decision such as Obergefell is hardly self-enforcing — it reverses the judgment of the Court of Appeals for the Sixth Circuit in 16 consolidated cases. To these cases, no one will offer resistance.

Third, they should pledge — and mean — to appeal any further decision that aims to force compliance with Obergefell, to the maximum extent allowable by law.

Fourth, they should pledge to interpret any decision in a particular case as narrowly as possible — as applying only to the parties therein rather than as setting a precedent for future cases — to the maximum extent allowable by law.

Fifth, they should make clear that the meaning of “the maximum extent allowable by law” might itself be a matter of reasonable dispute.

Sixth, they must pledge to protect state and local officials from legal penalty, civil damages, or injunctive relief for refusing, on reasonable, constitutionally protected grounds, to issue marriage licenses.

Seventh, they must pledge state resources — including law-enforcement resources — to interfere, when necessary, with unreasonable civil, criminal, injunctive, or other court-ordered sanctions pursuant to Obergefell. As John Adams exhorted a decade before the American Revolution, liberty cannot be won, or maintained, unless many individuals and groups “join their harmony in the same delightful concert.”

In these times that try men’s souls, we must not shrink, but must pledge allegiance again to our flag, and to the Republic for which it stands — never allowing ourselves to think it symbolizes five justices of the Supreme Court. Let us stipulate that many of those who now reject Obergefell have much of which to repent, for what they have done and left undone to save the culture whose retreat now seems to make them strangers in a strange land. They might have come to the field late, but this does not mean they can stand down — their opponents will not allow it. Their choice is to join a battle they did not seek, or simply defer it, to their disadvantage. To these Americans of faith and good will, a strategic retreat from politics — even to strengthen in themselves, their families, and their friends what they understand to be the truth — would be imprudent, if not self-indulgent. They will find themselves surrounded even more quickly — their universe shrinking with every political deed they now leave undone.

Name the process, the mechanism, the tangible way and procedure a state legislature can invoke the 10th Amendment during the course of actual law making in DC.

The process is simple. You ignore them, but of course you must also have a plan and be prepared for retaliation.

States could have ended abortion by simply affirming existing statutes against murder and arresting abortionist and their accomplices. If you think through the scenario and actions that could have been taken, the states would clearly have had the upper hand and we wouldn't be where we are now.

Can you imagine a president of the United States defending an order that federal troops protect the right to commit murderer and guard abortion mills? But where were the governors, legislators and state officials? All hiding it seems. Obviously power was more important to them than innocent life. Damn them all.

I don’t disagree with you in the substance of what you say but unfortunately, we live in a country that has been thoroughly corrupted because it abandoned religious principles long ago.

You mentioned the 17th Amendment but I see the 16th as a major religious turning point. The income tax was passed because the politicians promised it would only the rich and for a small amount. That was a betrayal of biblical principle and a direct violation of two commandments. The road to hell has to start somewhere.

Look if it keeps your mind active to dream and write about an Article V convention be my guest. Its a pike dream and also a poor substitute for just using the remedy that the Constitution has already given us. The 10th Amendment.

Just like the remedy the Constitution gives us for an out of control President is Impeachment.

The 10th Ammendment is for an out of control Judiciary and Congress.

Your regular ad hominems have no effect.

The 10th Amendment is a statement, that all that is not granted is retained. James Madison regarded such proclamations that aren't backed up without institutions to enforce them, as "parchment barriers."

In post #37 I asked you to "name the process, the mechanism, the tangible way and procedure a state legislature can invoke the 10th Amendment during the course of actual law making in DC."

You cannot, because the 10th doesn't provide for it. OTOH, Article V is a distinct grant of power.

While waiting obediently for impeachment/conviction of Obama and his ministers, our once republic cries in misery for redemption, for renewal of corrupt institutions to protect, rather than assault our liberties.

I’m a regular listener of Mark Levin. I don’t need an Article V education. Mark is wrong but so invested in his idea he won’t see any downside to it. I agree it is legal but I think people are extremely naïve to think they can control the ends or that new laws will make lawless people into lawful people.

So what are you going to do? Tell liberals they can’t attend, or have opinions? Quite frankly, if this convention is as well controlled and orchestrated as you believe, then is it not you trying out for tyrant?

Ultimately, the Constitution iterates over very few of our inalienable Rights; being as it is a throttle upon the Federal govt and what it SPECIFICALLY can (and mostly NOT) do.

In the end, this time there was a full frontal assault on the 9th and 10th by a single sentence of the ~150 yr. old 14th.

Unfortunately, I find more and more on these boards falling into the debate fallacy setup by the Left...and losing because of the same.

And, worse still, even more here believe at LEAST one of the current 2016 crop will do *anything* about this travesty and injustice (EG: Senators not even STARTING the ball rolling for impeachment, or any bill to tell SCOTUS to F* off...”.

Do the people have a God given right to design their government?

Yes they do, but considering how corrupt the "people" have become, I doubt they would allow other people their God given rights. At some point, if the government they create based on their God given rights goes wrong, am I supposed to just roll over and do as they demand? While you seem certain an Article V convention will work, I remain concerned about the time it takes and even more so as to the honor and integrity of the people who would attend. I don't see any equals to Jefferson, Madison, Adams, Washington, Franklin and on and on. We were blessed but that time has passed. The few very good ones we have are not enough to counter all the clever attorneys who think they are so smart.

Yet, even IF the 16th was passed successfully/correctly, it still tramples upon the 4th, 5th, 6th and 13th in its being and enforcement....

Yet, the whole of lawyers in D.C. and out can argue that, SOMEHOW, this is legal and Constitutional.

Social Security, Welfare, O’Care...all antithesis to the the Takings clause (in the least); again, seem as ‘legal’.

Still, these and more were passed in their day and, some would say, championed by the We the People of that time (where education may still have produced clear, logical thinking).

But, since the 1910’s, I recall nothing until the Civil Rights Act where ANY State attempted to assert its authority, and very few at that!

I suspect not even an Art. V would restore our Republic...its memory has too long passed from the minds of its people.

I did a CTRL F of “but” to this thread. Guess who won? Congratulations.

We have the right to frame our government, BUT you would deny it.

Never, in any process designed to create or amend a government, from the English parliament in 1688, the thirteen state constitutional conventions beginning in 1776, nor the federal convention of 1787, did any people EVER set themselves up to be slaves. Go back further and you'll find that the Roman Republic amended itself often enough to last 450 years. It did so not by declaring rights on paper, but rather by setting up institutions whose natural, structural interests tended to secure the liberty of the people.

Article V opponents equate a state amendment convention with our corrupted congress, a congress in which our freedoms and rights are easily traded away today for money, media support, and reelection tomorrow.

They are wrong. Article V opponents are stuck in static analysis.

Few people are not shaped by the institutions in which they participate. Without the federal convention of 1787, most of the delegates to it would be unknown to us. Not all were by any means virtuous, but in convention they set regional and personal interests aside to design good government. The 2015 congressman who would sell the rights of millions today for campaign cash would never think of harming his family. Michele Bachmann was run out of congress for being virtuous in a corrupt institution; she refused to conform. Had she joined the sleaze and venality that typifies congress, she could be there today. What I describe is identical to the behavioral difference between men in strip clubs and church.

The states will send serious men/women of character and judgment armed with commissions to promote their state supported amendments. Delegates to an amendment convention will be unconcerned with that which drives congress: money, personal power, and reelection will not be their focus or interest.

We can have every expectation that state delegates will rise to the occasion. They will understand the gravity of their assignment and conduct themselves in a manner precisely opposite that of congress.

Where did I deny anyone the right to frame their own government? I only contest your claim of certainty that a particular process will produce a good result.

I can also think of numerous times when people have supported governments that made them slaves, including the mobs of the Roman Republic cheering Caesar, the Weimar Republic appointing Hitler Chancellor, and the colony of Brazil anointing Dom Pedro I emperor. That is three of many that turned to monarchs and dictators to “amend” their governments. We were blessed, not lucky that we had good Christian people framing our government.

You are supposing that similar good people will assemble for an Article V convention. Where they come from, how they are elected, or appointed, we don’t know but you are sure these will be good people. And they will all rise to the occasion - health care for all, eliminate starvation, end cruelty to animals, abolish fire arms - and they will think they are good people, perhaps even better than our founders.

If we were a country that had just emerged from oppression and bondage, I would agree good people that cherish liberty and justice could be found. No, the people that will attend your convention will cherish their security and vanity more and work harder than ever to make a name for themselves. The fires of struggle that temper a good people burned out long ago. It is only the will of force that will preserve a corrupted republic, for better or worse.

So yes, it is your God given right to support an Article V convention, and it is my God given right to question its wisdom and oppose it if I find the wisdom lacking.

So, you don’t need an education on the Article V process because you’re a regular listener of Mark Levin’s? Obviously you’ve been sleeping through class because your fallacious arguments have been addressed many times before by Mark.

You’re misrepresenting the situation regarding Article V and trying to pass it off as analysis. First your false contention that, to make the case that the Article V process will not be a ‘runaway’ process means that it must therefore be a form of tyranny, is absurd. Tell that to the framers who created the provision. So it will be a form of tyranny to propose amendments that still need to be approved by 3/4 of the states? Even those that would be approved by the convention would still have to be agreed to by 2/3 of the state delegations present. On a state by state basis, we are much more Red than we are Blue.

By the way, are you against any new amendments to the Constitution or just those that are proposed through Article V?

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