Statement Calling for Constitutional Resistance to Obergefell v. Hodges

October 8, 2015 | americanprinciplesproject  Statement Calling for Constitutional Resistance to Obergefell v. Hodges  PDF format

We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hodges wherein the Court decreed, by the narrowest of margins, that every state in the country must redefine marriage to include same-sex relationships.
The Court’s majority opinion eschewed reliance on the text, logic, structure, or original understanding of the Constitution, as well as the Court’s own interpretative doctrines and precedents, and supplied no compelling reasoning to show why it is unjustified for the laws of the states to sustain marriage as it has been understood for millennia as the union of husband and wife.
The opinion for the Court substituted for traditional—and sound—methods of constitutional interpretation a new and ill-defined jurisprudence of identity—one that abused the moral concept of human dignity.

The four dissenting justices are right to reject the majority opinion in unsparing terms.

Justice Scalia refers to it as “a naked judicial claim to legislative….power; a claim fundamentally at odds with our system of government.”
Justice Thomas says the opinion “exalts judges at the expense of the People from whom they derive their authority” as it perverts the meaning of liberty into an entitlement to government action.
Justice Alito calls attention to the well-established doctrine 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 that it is “beyond dispute that the right to same-sex marriage is not among those rights.” He further points to the opinion’s tendency to reduce the purpose of marriage to “the happiness of persons who choose to marry.” He warns it will be used to “vilify Americans who are unwilling to assent to the new orthodoxy” and is yet another example of the “Court’s abuse of its authority.”

Chief Justice Roberts says “the Constitution leaves no doubt” that the majority’s “pretentious” opinion is incorrect. It even attempts to “sully those on the other side of the debate” in an “entirely gratuitous” manner.

If Obergefell is accepted as binding law, the consequences will be grave. Of the results that can be predicted with confidence, four stand out:

First, society will be harmed by being denied the right to hold out as normative, and particularly desirable, the only type of human relationship that every society must cultivate for its perpetuation. This compelling interest is strengthened by the fact that there is strong evidence to support what common sense suggests, namely, that children fare best when raised by their married mother and father who are both responsible for bringing them into the world and who provide maternal and paternal influences and care.

Second, individuals and organizations holding to the historic and natural understanding of marriage as a conjugal union—the covenantal partnership of one man and one woman—will be vilified, legally targeted, and denied constitutional rights in order to pressure them to conform to the new orthodoxy.

Third, the new jurisprudence of dignity is unlimited in principle and will encourage additional claims to redefine marriage and other long-established institutions.

Fourth, the right of all Americans to engage in democratic deliberation, and ultimately self-government, will be decisively undermined.
Any decision that brings about such evils would be questionable. One lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.

In 1788, James Madison wrote:

“The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”

In 1857, 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.”

If a 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.”

If, however, a decision is “wanting in all these claims to the public confidence,” it is “not factious” to resist it.

Obergefell is wanting in all these claims to the public confidence. It cannot therefore be taken to have settled the law of the United States.


We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is.
We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.

We call on all federal and state officeholders:

To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case.
To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.
To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.
To open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evident in Obergefell.
We emphasize that the course of action we are here advocating is neither extreme nor disrespectful of the rule of law. Lincoln regarded the claim of supremacy for the Supreme Court in matters of constitutional interpretation as incompatible with the republican principles of the Constitution. Our position is summed up in Lincoln’s First Inaugural Address:

“I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government.
And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

The proper understanding and definition of marriage is self-evidently a vital question affecting the whole people. To treat as “settled” and “the law of the land” the decision of five Supreme Court justices who, by their own admission, can find no warrant for their ruling in the text, logic, structure, or original understanding of the Constitution, would indeed be to resign our government into the hands of that eminent tribunal. That is something that no citizen or statesman who wishes to sustain the great experiment in ordered liberty bequeathed to us by our Founding Fathers should be willing to do.


williaml says:
October 9, 2015

I read your article on same sex marriage.
I have been trying to tell everyone about Ginsberg and Kagen.
I believe that they were in error because they had already preformed same sex weddings in 2013 & 2014. They should have recused themselves from the same sex marriage decision.
I believe that there was a violation on their part.
I am surprised that Not a single lawmaker brought this out since it is common knowledge.

Will Winn says:
I respectfully think you have missed a major element of the Unconstitutionality of this decision. This decision has, in itself, established a religion absolutely contrary to the establishment clause of the First Amendment. The Federal religion established is an Anti-Bible, Anti-Christian Cult. And, the most recent application/enforcement of this “law” in Kentucky clearly prohibits the free exercise of orthodox, evangelical Christianity, a violation of the free exercise clause.

Will Winn says:

The Apostle Paul in the first chapter of his letter to the Romans prophetically identifies the thought process of this aberrant court. “(J)ust as they did not think it worthwhile to retain the knowledge of God, so God gave them over to a depraved mind, so that they do what ought not to be done … Although they know God’s righteous decree that those who do such things deserve death, they not only continue to do these very things but also approve of those who practice them.”

Ike says:
To the legal servants of the APP initiative:

First, your position regarding the Obergefell decision is precisely, completely, and entirely correct. The grand and impartial principle of the American Constitution which not only defines the limitations of the powers of government but the purpose for which governments are instituted which is to SECURE (and never infringe upon) the rights of the People has been flagrantly violated by five Supreme Court justices and their blatant abuse of their DERIVED authority. And what makes that abuse BLATANT is that they exercised an authority that was NEVER derived unto them by the People nor ascribed unto them by the Constitution.

However, this is nothing new. It has been done several times before. The 1973 decision of Roe v. Wade which nationalized abortion across every single state in America was an evident decision of “judicial tyranny”. And after a 1986 case which struck down the requirement to even keep and preserve records of abortions, it became quite evident that the Supreme Court has attempted to REDEFINE “life” and now, they seek to REDEFINE “marriage”. And there are several other cases, where the Supreme Court has clearly overstepped their bounds without accountability or consequence. And this type of decisions will be made UNTIL THE ROOT OF THE PROBLEM IS APPROPRIATELY ADDRESSED.

And yet, the root of the problem is not with the unelected justices on the Supreme Court. And even further, the root of the problem is not even the silence of the Federal and State officials but rather it is the general and alarming ignorance of the American people AS IT RELATES TO the “text”, “logic”, “structure”, and “original understanding of the Constitution”.
Without this basic understanding, the American people do not know what it means to be an American.

And when they do not know what it means to be an American, they will continue to accept un-American decisions, laws, or policies that do not reflect THE AMERICAN PRINCIPLES. And this, as we already know, is plunging the nation gradually yet rapidly into a condition that may be irreversible for I do not, by any figment of the imagination, believe that we are invincible or possess a special type of immunity to national disaster or even ruin.

In the words of a late and prominent proponent for American principles that ought to be indelibly engraved upon the mind of every American:

“It is absolutely incumbent on EVERY CITIZEN to be so well read in the Constitution and the Declaration [of Independence] that he shall know FOR HIMSELF the LIMITATIONS upon the government, and act accordingly. EVERY CITIZEN must hold HIMSELF, as well as THE GOVERNMENT, strictly to the Constitution.
The Constitution is a limitation, not, indeed upon the POWER of the people, except in the prescribed way, but upon the passions and caprices of the people. This is sound AMERICAN PRINCIPLE. It is the fundamental principle of a government of the people.”

And THAT is the root of the problem and until the axe is laid to THAT root then it is “neither extreme nor disrespectful” to say that, if we fail to be proactive in educating the American people concerning the Constitution and impressing them with such a sense of personal accountability in utilizing the resources we provide for that education, then we will simply be “beating against the air.”

In short, my plea to you is to soberly consider planning, providing, and organizing an effective and deliberate means of educating the American People — with the utmost clarity and greatest simplicity — concerning their rights as embodied in the Declaration of Independence and delineated in the American Constitution.

The American people need not all be legal professionals as yourselves are. All they need to understand is the fundamental principles that has made this nation a power to be respected and a beacon of freedom to be desired for the last 200 years.

This is the only way that we may be successful in any of our endeavors. The American People need to understand FOR THEMSELVES the text, logic, structure, and original understanding of the American Constitution and the principles that guided the Framers of that historic document. And if they have been persistently and successful educated in this way, one thing is certain:  It will effect public sentiment AS NOTHING ELSE CAN.

In closing, I leave this quote with you from Abraham Lincoln:

“Public sentiment is EVERYTHING. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently, he who molds public sentiment, GOES DEEPER THAN HE WHO ENACTS STATUTES or PRONOUNCES DECISIONS. He makes statutes and decisions POSSIBLE or IMPOSSIBLE TO BE EXECUTED.”
Nancy D (@AnnDanielD) says:

We live in a Republic; our Constitution is The Law of The Land that serves to secure and protect our unalienable Rights that have been endowed to us from God, the purpose of which can only be what God intended.

DOMA defined marriage in federal law as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. 7.a

Here is what Justice Kagan had to say in Yates v. United States:
“…assigning “tangible object” its ordinary meaning comports with noscitur a sociis and ejusdem generis when applied, as they should be, with attention to §1519’s subject and purpose.
Those canons require identifying a common trait that links all the words in a statutory phrase. See, e.g., Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. 280, 289, n. 7 (2010); Ali, 552 U. S., at 224–226″…

“But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. ‘Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.‘ Rodgers, 466 U. S., at 484.
If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.”

One cannot change the letter of the law without changing the spirit of the law.
It is unlawful for The Supreme Court to remove the necessary requirement for a marriage contract in order to accommodate persons who do not have the ability and desire to exist in relationship as husband and wife, thus invalidating the validity of any valid marriage contract between a man and woman existing in relationship as husband and wife.

Marriage cannot in essence be, existing in relationship as husband and wife, and not existing in relationship as husband and wife, simultaneously.

I suppose one could logically assume that if the new precedent set by The Supreme Court results in a Court ordered implementation of marriage fraud, the new precedent set by The Supreme Court must be invalid.
Catholic bishops call same-sex marriage ‘intrinsic evil’ many, many links


About arnash

“When you find yourself on the side of the majority, it’s time to pause and reflect.” - Mark Twain - Politicians and diapers - change 'em often, for the same reason. "Government is like a baby. An alimentary canal with a big appetite at one end and no sense of responsibility at the other." Ronald Reagan "Liberals claim to want to give a hearing to other views, but then are shocked and offended to discover that there are other views." William F. Buckley, Jr. “The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt.” - Bertrand Russell The people are the masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert it. Abraham Lincoln “Good people sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.” - George Orwell “Satan will use a lake of truth to hide a pint of poison”.
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