Category Archive 'Obergefel v. Hodges'

09 Oct 2015

Obey the Constitution and State Law, Not Five Judges

, , , ,

Photoshopped version of: Vasili Pukiriev, Неравный брак [The Unfitting Marriage], 1862


More than sixty prominent legal scholars are out with a statement saying the Supreme Court’s Obergefell decision “cannot be taken to have settled the law of the land.” Therefore the scholars are calling upon federal and state office holders, along with regular citizens, to act as if the decision is invalid.

The scholars write that the bare-majority decision on gay marriage lacks “anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution.” The ruling “must be judged anti-constitutional and illegitimate,” they say.

Signers of what some will consider a controversial proposition include Professor Robert George of Princeton University, who said, “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.”

Specifically, the signers are telling office-holders to, “refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case, recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.”

The letter urges government officials to, “pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons, and 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.”

They remind office-holders that they pledge to uphold the Constitution of the United States, “not the will of five members of the Supreme Court.”

They cite Presidents Madison and Lincoln as justification for their position. President Lincoln acted as if the Dred Scott decision — that neither slaves nor free blacks could be considered American citizens and that the federal government had not right to regulate slavery in the federal territories — was illegitimate and he refused to recognize that it effected anyone in the country except the immediate plaintiffs.

The letter was signed by scholars from a wide range of academic institutions including Kansas State, Boston College Law School, Boston University, Michigan State University, Texas Tech, University of Oxford, Villanova, Vanderbilt, Amherst, Notre Dame, Catholic University of America and many others.

30 Sep 2015

Sophistry as the New Constitutionalism

, , ,


Bruce P. Frohnen, at the University Bookman, points out how the recent SCOTUS Obergefel decision typifies the operation of modern American government outside the realm of law.

Can’t get the votes you need? Simply change the rules of the Senate. Lack sufficient support to ratify a treaty? Re-define it as an Executive Agreement. Can’t get Gay Marriage through the legislatures? Interpret some new “rights” out of the Constitution.

Limited government with defined powers is magically transformed into totally unlimited government, free to do anything the community of fashion strongly desires to do.

What made Justice Kennedy´s decision in Obergefell so damaging was not its seemingly endless, vapid paeans to individual autonomy and other pseudo-intellectual claptrap. The inferior quality of Kennedy´s musings is beside the point. The problem is that his musings have no basis in our Constitution or in the moral and intellectual traditions that shaped it and our culture. Kennedy´s legal reasoning, such as it is, flagrantly violates the rule of law in order to impose the “correct” policy on the nation.

The judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.

I am hardly the first to point out that Obergefell substitutes the will of judges for the rule of law. It demands of the people that they forego their obligation to follow and uphold the law of the land and instead bow to the will of the rulers. Such commands are inimical to any semblance of ordered liberty. Unfortunately, these commands, issuing ever-more frequently from the courts and the administrative state, have become deeply embedded in our legal culture and have rendered our legal nomenklatura immune to arguments rooted in reason and to principles of fair play and civil discourse. At the same time, the judiciary’s willful conduct has inured it, and us, to the tactics of ideological force.

Read the whole thing.

07 Sep 2015

America’s New Test Act

, , , ,

In earlier times, recusants like Margaret Clitherow (1586) might be pressed to death in England.

Bookworm argues, quite correctly, that what has happened to Kim Davis demonstrates that Justice Kennedy’s Obergefel decision results in the establishment of the secularist equivalent of England’s Test Act, which barred Roman Catholics and other religious non-conformists from holding public office. Today’s established church, of course, is the Church of Secular Statist Egalitarianism.

Going back in time a few hundred years, one of the primary things that drove British people to America’s shores — beginning in 1620 — was religious discrimination. A significant feature of this discrimination came into being in the late 17th century with various laws aimed at preventing anyone who was not a member of the Church of England from holding public office (civil or military) or working in a university or college. To get those jobs, one had to take an oath [affirming conformity to the beliefs of the church of England]. …

In other words, no non-conformists, Catholics, Jews… or practitioners of any other non-C of E religions need apply. It was against this backdrop that the Founders, more than twenty years before England slowly started reforming its religious restrictions, enacted the First Amendment to the Constitution, the very first clause of which definitively rejects a religious test for public employment:


Today, though, thanks again to Judge Kennedy’s fatuous romanticism and magical constitutional thinking, we are seeing the federal government reject the First Amendment and revert to the Test Act mentality. Davis and others similarly situated are being forced into the equivalent of an oath. …

I warned years ago that, if the gay marriage crowd got its way, we would see the end of the First Amendment and I issued this warning because I foresaw what is happening here: Because gay marriage is antithetical to mainstream traditional faith it can be forced on Americans only if the federal government requires people to abandon their faith — something directly contrary to the promise of the Bill of Rights.

Kim Davis may not be a pretty Hollywood star or an even prettier San Francisco mayor, and her own approach to traditional monogamous heterosexual marriage may be spotty, but she has proven herself to be a true member of the civil disobedience club, one who is willing to go to jail to defend her civil right to practice her religion freely without the United States government forcing her to abandon core doctrinal beliefs as a condition for employment.

04 Sep 2015

Constitutional Jurisprudence in 2015

, , ,


Christopher Taylor identifies the point we’ve reached in America’s relationship to its Constitution.

And so we reach the point at which I’ve given up the idea of ever getting back to the constitution today. In fact, I’ve come to the realization that there’s no point in appealing to the document as any kind of governing and restraining document because the government and people have simply abandoned it except as a fetish.

Recent supreme court decisions have simply negated the constitution entirely, building on decades of ignoring and twisting the document, inventing things not in it until its simply trash. And all of this happened because of well-meaning tiny little steps, any one of which the founding fathers would have been enraged at, but we sigh and shrug at today.

There is no rational basis for thinking that any government will reverse this. It simply is without precedent in human nature and history for a politician to voluntarily surrender their own power or a government to weaken its self. There is only one direction, one trend: toward tyranny.

The founders knew this. They did their best to lock in our freedom and protect this inevitable tendency of the state. It was so well done that the nation lasted more than a century with great, widespread liberties. That era is over, and only one future lies before us, barring some act of God.

The only question is what lies beyond that point, and how we get through it.

04 Sep 2015

Kim Davis’s Honorable Stand

, , ,


Lots of conservative legal experts, including Antonin Scalia, Jon Adler, and Jacob Sullum have come forward to argue that Kim Davis should either do her job and issue same-sex marriage licenses or resign, Douglas Wilson produced an exceptionally eloquent rebuttal.

A consensus appears to be developing among otherwise reasonable people that Kim Davis, of Rowan County fame, either needs to start issuing marriage licenses or quit her job.

For those just joining us, a county clerk in Kentucky is refusing to issue marriage licenses against her conscience and is also refusing to resign. Her name, which should be on a bronze plaque on the side of the courthouse, is Kim Davis. A federal judge has ordered her to appear in his courtroom Thursday to explain why Davis should not be held in contempt of court for refusing to issue marriage licenses.

But there is a difference between contempt of court and seeing that the courts have become contemptible. …

[Rod Dreher (9/1) wrote of Kim Davis’s stand: In the future, there will surely be hills worth dying on, so to speak, as Christians. This is not one of them.]

I want to begin by making an observation about that hill-to-die-on thing, but then move on to discuss the foundational principle that is at stake here. After that, I want to point out what it would look like if more government officials had the same understanding that Kim Davis is currently displaying — despite being opposed by all the intoleristas and also despite being abandoned by numerous Christians who admire her moxie but who don’t understand her moxie.

First, whenever we get to that elusive and ever-receding “hill to die on,” we will discover, upon our arrival there, that it only looked like a hill to die on from a distance. Up close, when the possible dying is also up close, it kind of looks like every other hill. All of a sudden it looks like a hill to stay alive on, covered over with topsoil that looks suspiciously like common ground.

So it turns out that surrendering hills is not the best way to train for defending the most important ones. Retreat is habit-forming. …

The point here is not just private conscience. The right to liberty of conscience is at play with florists, bakers, and so on. But Kim Davis is not just keeping herself from sinning, she is preventing Rowan County from sinning. That is part of her job.

Every Christian elected official should be determining, within the scope of their duties, which lines they will not allow the state to cross. When they come to that line, they should refuse to cross it because “this is against the law of God.” They should do this as part of their official responsibilities. This is part of their job. It is one of the things they swear to do when they take office.

This is nothing less than Calvin’s doctrine of the lesser magistrates (Institutes 4.20.22-32), which I would urge upon all and sundry as relevant reading material. And as Calvin points out, after Daniel — a Babylonian official — disobeyed the king’s impious edict, he denied that he had wronged the king in any way (Dan. 6:22-23).

Read the whole thing.

Your are browsing
the Archives of Never Yet Melted in the 'Obergefel v. Hodges' Category.

Entries (RSS)
Comments (RSS)
Feed Shark