Obergefell v. Hodges was a resounding victory for Government by Judiciary (the title of Raoul Berger’s book), and a crushing defeat for representative government. Conservatives must fight a guerilla war against the “judicial Putsch” (Scalia J. dissenting, Part II) of the Obergefell majority. Some strategies:

1.) Terminology. “Marriage” must be used only in the sense of “union of a man and a woman, brought into being by a licensed celebrant of marriages.”

No one who values words, and no one who defends Judeo-Christian civilization from the barbarians within our gates, will ever use “same-sex marriage.” There is no morality equivalence between a law-recognized homosexual perversional relationship and a marriage, any more than there is a moral equivalence of deaths caused by Islamic terrorists and deaths caused by Jewish defenders.

2.) Constitutional theory. The United States Constitution is binding on the states, “and the Laws of the United States which shall be made in Pursuance thereof” are binding on the states, and treaties are binding on the states, because the Constitution, pursuant laws, and treaties are “the supreme Law of the Land.” U.S. Const. art. VI, cl. 2.

A judicial determination is not listed as “the supreme Law of the Land,” so Obergefell is not binding on all states. It is binding only on the states which were parties in that case.

A non-political and non-ideological opinion can be accepted voluntarily by states.

3.) Civil disobedience. There are some 3,000 counties (and county equivalents) in the United States. Suppose that the governor of a Republican state were to order county clerks (or equivalents) in that state not to issue any marriage license, other than to a man and a woman.

That order would be lawful, because there is no article VI obligation of a state to conform to judicial determinations generally. A state is bound only by a judicial determination made in litigation to which the state is a party.

What can a United States district-court judge, a bedfellow (so to speak) of the execrable ex-judge Vaughn Walker, do about that gubernatorial order? Nothing on his, her, or its own. A United States court has “neither FORCE nor WILL, but merely judgment.” The Federalist, No. 78 (Hamilton).

What can the United States Department of Justice do about that gubernatorial order? Start a lawsuit.

That’s fine and dandy against one or two county clerks, but civil disobedience offers safety in numbers. The Justice Department does not have the resources to sue 50 or 100 or 500 county clerks simultaneously.

Should the abhorrence of American values, which animates President Obama and Attorney General Lynch, cause the Justice Department to litigate nonetheless, nothing will come of that litigation.

The Obama presidency has 1½ years to run. From June, 2016, onward, the Justice Department will be paralyzed by end-of-presidency resignations. January 20, 2017, will dawn long before the Justice Department lawsuits shall have run their respective courses in the courts.

4.) Jury nullification. The evidence regardless, every fact issue should be decided by a jury against the Justice Department. Imagine that the claim of the Justice Department, the plaintiff, is that Cameron County, Texas, the defendant, applies a marriage-license policy which is prohibited by Obergefell. The verdict of the jury in that case, and the verdict of every jury in every Obergefell case brought by the Justice Department, should be, “The county did not act contrary to Obergefell.”

5.) No damages; otherwise, derisory damages. Consider that Mr. Joe and Mr. Moe, as plaintiffs, sue Miss Mary, a Gospels-adhering county clerk, as defendant, for violation of their “civil right” to defy God’s law and natural law. The jury should return a defendant’s verdict.

In the alternative, the jury should return a plaintiff’s verdict, and award damages of $100. After a few tort cases in which $15,000 in lawyer’s fees generates $100 in damages, Obergefell-motivated litigants will back off.

6.) Beliefs. Employees of a county clerk should claim that their religious beliefs preclude them from issuing marriage licenses to people who want to enter into law-recognized homosexual perversional relationships. The claim of the employees would be unassailable. A court may not inquire about a sincere religious belief, and a court may not evaluate whether a religious belief is plausible. Burwell v. Hobby Lobby Stores, Inc., slip op. at 36-38 (2014). Done right, dozens of county-clerk offices will have no employees who will issue unacceptable marriage licenses.

The writer is the author of Krueger on United States Passport Law (2nd ed. 2005).