Repeating Past Errors in Responding to Obergefell

I recently attended meetings in Washington, D.C. that focused on state-based responses to the Supreme Court’s Obergefell same-sex “marriage” decision in June. To be honest, I was not happy. It seems we’ve not learned from past mistakes.

The general sense of those present was that marriage had lost, that the proverbial “fat lady” had sung. We now just needed to move on and protect religious liberty from the assaults that are sure to come.

I certainly agree that assaults on religious liberty are coming and that we should do everything as a state to protect against those assaults. But, to me, at least in Tennessee, that is the wrong first priority. The first priority is to find a way to challenge the legitimacy of the Supreme Court’s ruling.

That is why I was so glad this week to read that a number of constitutional scholars have proposed doing just that. Their “Statement Calling for Constitutional Resistance to Obergefell v. Hodges reflects a right understanding of the Constitution, history, and how the give and take of the legal-judicial process is supposed to work.

If you got the typical pabulum-based civic education offered in most of our schools since the 1960s, I strongly suggest you read it and pass it on to your friends. Be one of the sparks that starts the much-needed second American Revolution as you help educate your friends!

This new “American Revolution” is needed, because statutes protecting religious liberty, as good as they are, are short-term solutions to a long-term problem that we’ve failed to address. Religious liberty statutes, which our organization has helped pass, are good only as long as there are not enough hostile votes to repeal them or to make them useless.

What happened in Indiana this spring is Exhibit A.

Indiana passed a Religious Freedom Restoration Act to protect those who carry their religious convictions with them into the marketplace. But when gay-rights activists got upset, Indiana “fixed” the offense it had caused this constituency by amending the law to expressly prohibit those religious liberty protections from applying to wedding vendors like florists and cake bakers!

Good religious liberty-protecting statutes will offer some temporary protection, but they fail to get at the root of the problem, an out-of-control Supreme Court that has, by its ruling, not just turned the Constitution and federalism inside out and upside down, but has exalted itself above God by declaring what He says is not a marriage to be a marriage.1

But setting aside the theological issue of the Supreme Court’s exaltation of itself vis-à-vis God, it has also exalted itself over the people who comprise the states, which, in turn, created the Constitution from which the Court draws its powers. The Court has exalted itself over its “creators,” and it began this current journey back in 1965. And we did nothing about it.

In 1965, the Supreme Court in the case of Griswold v. Connecticut found a “right of privacy,” which it then applied to strike down certain state laws regulating contraception that, in its opinion, cramped sexual liberty. The Court followed it up with a corollary decision in 1972, Eisenstadt v. Baird, again dealing with contraceptives. In 1973, those two cases led to the abortion decision, Roe v. Wade.

In response to Roe, well meaning Christians and conservatives fought the “symptom” of Roe—abortion—and ignored the Supreme Court’s overreach of the Tenth Amendment in Griswold and Eisenstadt. Having failed to do that, we now have same-sex “marriage.”

Here is what Justice Roberts said in his dissent in Obergefell about its connection to Griswold:

“The majority suggests that ‘there are other, more instructive precedents’ informing the right to marry. Ante, at 12. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental ‘right of privacy.’ Griswold, 381 U.S., at 486.”

In other words, Justice Roberts is pointing out that the current Supreme Court used Griswold to help it find a right to same-sex “marriage”!

So, in response to Obergefell, I have to ask myself, our state legislators, the members of Tennessee’s Congressional delegation, and you, “Will we learn from our failure in the 1960s to address the real problem—an overreaching Supreme Court—or will we just retreat to addressing symptoms, like future attacks on religious liberty?”

I, for one, am ready to get to the root of the problem. And if you agree, let me know and share this with your friends. It’s time “we the people” of the sovereign states say to the Supreme Court, “Enough!”


1. Letting the Supreme Court do that is not acceptable to those who take seriously the exhortation by the Apostle Paul in 2 Corinthians 10:5 that Christians should be “casting down arguments and every high thing that exalts itself against the knowledge of God, [and] bringing every thought into captivity to the obedience of Christ” (NKJV).

— David Fowler, President of FACT