More than sixty prominent legal scholars are out with a statement saying the Supreme Courtâ€™s Obergefell decision â€œcannot be taken to have settled the law of the land.â€ 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 â€œanything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution.â€ The ruling â€œmust be judged anti-constitutional and illegitimate,â€ they say.
Signers of what some will consider a controversial proposition include Professor Robert George of Princeton University, who said, â€œWe 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.â€
Specifically, the signers are telling office-holders to, â€œrefuse 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.â€
The letter urges government officials to, â€œpledge 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.â€
They remind office-holders that they pledge to uphold the Constitution of the United States, â€œnot the will of five members of the Supreme Court.â€
They cite Presidents Madison and Lincoln as justification for their position. President Lincoln acted as if the Dred Scott decision â€” 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 â€” 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.
In 1857, Chief Justice Roger B. Taney applied his judicial powers to conclude once and for all the vexatious arguments about the extension of Slavery to the the Western territories which had persisted since 1820. In Dred Scott v. Sandiford , he ruled that persons of African descent could never be US citizens, slaves could not sue in court, and Congress had power to exclude Slavery from the territories. So there. The result, of course, was the Civil War.
The Wall Street Journal editorializes today on the folly of judges usurping the decision-making power of the people as a whole.
Judges invent wedge issues. Always have. As with California’s Supreme Court, many of the berobed judiciary take it as their solemn duty to do the people’s thinking for them on the modern world’s most difficult and divisive social issues. So it was with Roe v. Wade, when the U.S. Supreme Court declared 50 state legislatures irrelevant. The aftermath has been more than 30 years of the abortion wars.
California’s Supreme Court is not the law of the land, but its 4-3 ruling, titled “In re Marriage Cases” for six consolidated appeals, explicitly told both the state’s voters and its elected legislature to get lost. Back in 2000, California voters by 61% approved a proposition asserting that the state could only recognize a “marriage” between man and woman.
Now comes the court. In the court’s words: “[T]he core set of basic substantive [court’s emphasis] legal rights and attributes traditionally associated with marriage . . . are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.” This rule by judicial decree could hardly be clearer. What is also clear is that judges should again be an election issue.
The school of thought which holds that the American people should cheerfully accede to whatever social world unelected judges design for them is Democratic orthodoxy. …
The gay community wants social acceptance. It should look to what flowed from Roe v. Wade: unending bitterness. A wiser course in 21st-century America is to trust the democratic process.