In recent weeks, many have asked me if it is legally, constitutionally, and historically appropriate to resist the Supreme Court’s same-sex “marriage” ruling. The clear answer is “yes,” and here is at least one answer that meets all three of those criteria—legal, constitutional, and historical.
The appropriateness of Americans resisting the Supreme Court’s ruling in Obergefell v. Hodges is based, in part, on what Abraham Lincoln said after the Supreme Court’s Dred Scott decision. He said that when a Supreme Court decision (1) does not “accord both with common sense, and the customary understanding of the legal profession,” (2) has not “been made by the unanimous concurrence of the judges, (3) does not have “any apparent partisan bias, (4) is not “in accordance with legal public expectation,”(5) is not “in accordance . . . with the steady practice of the departments throughout our history,” and (6) is not “based on assumed historical facts which are not really true,” then that decision may be considered settled and resistance to it “factious” only if it has “been affirmed and re-affirmed through a course of years.”
Application of that test to Obergefell leads to only one conclusion, namely, that Obergefell is not “settled,” should be given little to no precedential value, and can be constitutionally resisted.
Lincoln’s test may first be applied to the Obergefell decision as follows:
- Same-sex “marriage” is not in accord with common sense and not in accord with the “customary understanding” of marriage in the legal profession.
- It was not only not unanimous, but it provoked four of the most strongly worded dissents in the history of the Court.
- Justice Ginsburg showed bias prior to oral arguments in Obergefell. She reflected in her statement that the public seemed ready to accept same-sex “marriage” and referred to constitutional rights in connection with a same-sex “marriage” she officiated.
- It was not in accordance with the legal expectation of the states but, to the contrary, the expectation of people of the states was that marriage should remain a relationship between a man and woman as evidenced by the passage of thirty-one state constitutional marriage amendments.
- The recognition of same-sex “marriage” has not been the “steady practice . . . throughout our history,” since the first legal same-sex “marriage” in America wasn’t “authorized” by a state court until 2004.
- It was based on a wrong understanding of the historical facts regarding the nature of marriage, extrapolating from matters like the abolition of coverture that the fundamental nature of marriage as a man and a woman had somehow also evolved.
Since Obergefell fails the first part of Lincoln’s test, it can be considered “settled” law deserving of deference only if the Court’s authority over the states to define marriage has been “affirmed and reaffirmed through a course of years.” This has not been done in regard to a number of issues, including the constitutionality of the Court’s authority to affirmatively dictate to states a law that they must enact.
If Lincoln’s statement reflects an appropriate, historical test for evaluating whether the exercise of authority by the Supreme Court is to be accepted by other branches of civil government or by the states, which a number of constitutional experts believe it does, then Obergefell v. Hodges is not “settled law.”
Thus, it is certainly more than appropriate for citizens and the states to resist the Court’s ruling by appropriate means. Stay tuned for more on what that looks like.
—David Fowler, President of FACT
On April 28th, Tennessee will be in the spotlight nationally and maybe even globally. It will be referenced in one of the most prominent chapters that will ever be written about the history of the United States. On that day the U.S. Supreme Court will hear oral arguments concerning the constitutionality of Tennessee marriage law. Who in that courtroom will be on the “right side of history”?
The “right side of history” is an argument often heard these days against those of us who insist that marriage is a real thing, much like the “rules” for reasoning and speech are real things, real structures for thinking and communicating. And just like a real sentence requires a subject and a verb, marriage requires a man and a woman, real qualities rooted in the biology of x- and y-chromosomes that no surgery, style of apparel, or state of mind can alter.
Supposedly we who believe this way are on the wrong side of history. But that’s a bit of tricky rhetoric. When does “history” end such that we will know what it proves? History isn’t measured like a game in which each side’s points are finally tallied once the final buzzer sounds and the winner declared.
In our generation, in which the immediate present is seemingly all that matters, it may be that by the end of June, when the Supreme Court rules, those who believe as I do will be said to be on the wrong side of “history.”
However, Supreme Court rulings are not the “final buzzer” when it comes to whether one is on the right or wrong side of history. Even the decisions of the Supreme Court don’t often stand the test of time. For example, the Dred Scott decision put slavery on the right side of history, for a while. Plessy v. Ferguson put “separate but equal” on the right side of history, for a time.
What history shows us—even as in the case of the Supreme Court decisions cited—is that the right and wrong side of history is a matter of ethics, not chronology. Right and wrong, and the truth that measures them, are the things that stand the test of time. Truth always wins out and the wrong always gives way to the right, even though it may take hundreds of years for what’s true and therefore right to regain its rightful place in the minds of the people.
And therefore, for me at least, if I’m going to take seriously the various propositions set forth in the Bible, I can’t really be worried about the “right side of history” argument. I can’t worry about it, because I believe that the Creator God revealed in the Bible is the Author of history, and He unalterably moves it toward His appointed ends.
But in regard to those “ends,” Scripture tells me that the “end” of His creation—His intention for it—was that it reflect His glory, which means that what He created had to be consistent with who He is. Anything other than that would have fallen “short” of His glory; it would have been “beneath Him,” we might way.
In that regard, I’m told that God made the human race male and female, because together there is a complementariness to their coming together that reflects the completeness of who He is. Two people of the same sex coming together can never reflect this purpose of God, and, therefore, He “naturally” sees it as our rebellion against His intention.
The fearful thing is that He also has told us He will not allow us to rebel against Him in this (or in any other thing) forever. He could not be just if He did. Thankfully, He did provide a way for us to be made just, and that is why for centuries the cross was the marker by which we measured history. So, I believe that in time the truth about how God has made us and how He intended us to come together will prevail.
Of course, my view of marriage is the minority position these days; however, what today we call orthodox Christianity was also the “minority position” 2,000 years ago. And that’s enough historical proof for me to believe that I should not be too worried about the right side of history argument. History’s in the hands of Someone I can trust it to.
— David Fowler, President, Family Action Council of Tennessee