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October 15, 2015

Can We ‘Constitutionally Resist’ Same-Sex Marriage Ruling?

Sixty legal scholars say Americans should resist the Court’s decree.

Sixty legal scholars and concerned citizens signed a statement enjoining Americans to resist the Supreme Court decision allowing same-sex marriage on the grounds that the five justices in the majority overstepped their bounds. The scholars write:

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.

Robert P. George, founder of American Principles Project, and fellow signatories listed the reasonings of the four dissenting judges, including Justice Antonin Scalia’s scathing remark that Obergefell was “a naked judicial claim to legislative … power.” They boldly state their case:

The Supreme Court is supreme in the federal judicial system. But the justices are not supreme over the other branches of government. And they are certainly not supreme over the Constitution.

In Obergefell v. Hodges, five justices, without the slightest warrant in the text, logic, structure, or historical understanding of the Constitution presumed to declare unconstitutional the marriage laws of states that maintain the historic and sound understanding of marriage as the conjugal union of husband and wife.

Obergefell is not “the law of the land.” It has no more claim to that status than Dred Scott v. Sandford had when President Abraham Lincoln condemned that pro-slavery decision as an offense against the very Constitution that the Supreme Court justices responsible for that atrocious ruling purported to be upholding.

Not so fast, says Salon writer Corey Robin in his post, “The right’s shameless new Lincoln lie: Dred Scott, same-sex marriage, and the honest history of Abraham Lincoln.”

Robin says:

Lincoln is careful to say that in not treating Dred Scott as precedent he means that he will seek to overturn the decision by the Court itself, that he will not allow to be viewed as settled law. He will agitate for the wrongness of the decision, argue against its application in future rulings, and perhaps seek the appointment, if/when given the chance, of Supreme Court justices who agree with him. What he will not do is resist the decision.


One could argue that Lincoln spent his entire presidency resisting the dreadful Scott decision. In 1862, Lincoln signed legislation prohibiting slavery in the territories, thereby repudiating the Scott ruling. (Contrary to what Robin infers, Lincoln didn’t accomplish this through the Court, but with executive action and congressional collaboration.) Lincoln also signed the Emancipation Proclamation, which he considered his greatest presidential legacy. “I never, in my life, felt more certain that I was doing right, than I do in signing this paper,” he declared. “If my name ever goes into history it will be for this act, and my whole soul is in it.”

What Lincoln did not advocate, during campaign debates with Stephen Douglas, was violent resistance. Neither do these advocates of gender-inclusive (i.e., traditional) marriage. Rather, they vow to resist “by every peaceful and honorable means” and urge all to join them in this call to action, including the current presidential candidates.

In the marriage debate, Lincoln might say something similar to the joke attributed to him: “How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it a leg.”

For a president so bent on uniting North and South, Lincoln would doubtless be appalled that some activists in this country are determined to separate men and women in marriage. Instead of calling a tail a leg, redefiners insist an extra man can replace a wife.

The controversial statement urging constitutional resistance reminds us that the Obergefell ruling, like Dred Scott, is far from settled law. Many Americans (including Kentucky clerk Kim Davis) remain deeply unsettled at the idea of segregating sexes in marriage. Five justices haven’t changed that.

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