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
At first blush, it would seem that fiscal conservatives who hate things like Obamacare would be uninterested in the Supreme Court’s ruling in June on gay “marriage.” But the same judicial philosophy that gave us gay “marriage” kept Obamacare alive. Consequently, no one’s liberties are safe from this Court. No one’s.
To understand why the judicial philosophy undergirding the gay “marriage” ruling, Obergefell v. Hodges, is the same as the SCOTUScare ruling, King v. Burwell, you need to understand what the Court did in King.
The Legal Issue in King
In King, the issue was whether government insurance premium subsidies were only available for polices purchased on insurance exchanges “established by a state.” The reference to “state” exchanges occurred upwards of seventeen times in the statutory language of Obamacare.
As you know, this was a problem since few states established exchanges; most were established by the federal government.
The Practical Problem in King
This was a problem because the Court knew that if the subsidies could not also be given for policies on federal, government-established exchanges, then Obamacare would collapse as a practical matter. The premiums would not longer be affordable for the majority of policies being bought through state and federal exchanges.
So, effectively the Court “interpreted” the statutory words “established by the state” to mean “established by the state or the Federal Government.” That’s exactly what Justice Scalia said in his dissent, “The court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government’ … .”
What the King Court Really Did
What the Court did was effectively legislatively enact a statutory amendment to Obamacare. Passing laws and amending laws is not the function of the Court.
But, liberals say, “Obamacare would have collapsed. What was the Court supposed to do?” Again, Scalia gave the answer, “Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state exchanges.” Of course, Congress might not have re-enacted Obamacare, but that is a political question and should be of no concern to the judiciary.
Letting the Court judge and the legislature legislate is the complementary work of governing envisioned in our Constitution. It is nothing strange or new. Every year as a state Senator, I voted on laws amending existing laws to “fix” something that in our limited foresight we didn’t anticipate. Congress, not the judiciary, should have amended Obamacare.
The Obamacare and Gay ‘Marriage’ Judicial Philosophy Are the Same
But here is where the Court’s judicial philosophy is the same as under Obergefell. In both cases, the Court was acting as a legislative body. In King the majority amended a statute to say what it didn’t say, and in Obergefell they expect states to treat their marriage statutes as if the Court had amended them to say “two people” can marry instead of “one man and one woman.”
Violating Basic Principles of Government
Our Founding Fathers were very clear regarding the limited nature of the Court’s power. Federalist Paper 78 says that the Court has “neither Force nor Will, but merely judgment.”
In other words, the Court can judge whether a law is constitutional, and it can judge the meaning of the actual words in law, but it can’t exercise the political “force” nor “will” to write a law or to amend a law by interpreting it to add words that aren’t there. When the Court does this, it should scare all of us.
Why This Is Scary for All
We are warned in Federalist Paper 78, “[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers.” This is true because when words no longer have any meaning, as they apparently did not in King, then the words of statutes and the Constitution will morph into whatever five unelected, unrepresentative lawyers on the Supreme Court say it is. Representative government of and by and for the people is dead!
What Can Tennesseans Do?
Since Congress has chosen to abdicate its responsibilities under the Constitution to reign in the Court, it will be up to the states to do so. While Congress chose to do nothing to keep the Court from amending its Obamacare statute, Tennesseans can insist that its legislature not be so spineless. We can insist that Tennessee show Congress how to have a backbone by reminding the Court that only our state legislature can amend Tennessee’s marriage statutes. If you want to encourage them to do that, then go to Reclaiming Our Liberty to find out what you can do.
— David Fowler, President of FACT