Reclaiming the Rule of Law after Obergefell

Justice Kennedy’s reasoning in Obergefell is fully encapsulated by his first line: Americans have a constitutional right “to define and express their identity.” Of course, this right is contingent on their defining only those things to which the Supreme Court is willing to ascribe “dignity,” in prose so purple it must be read with tinted glasses. On its face, the reasoning is as risible as it is contemptible. In this new, metastasized version of substantive due process, the business of adjudicating rights no longer demands analysis, only ascription.

The dissents are among the harshest, most dismissive, and most suggestive in the history of the Supreme Court. Justice Scalia opines that the Court has “descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” He says, “If I ever joined [such] an opinion . . . I would hide my head in a bag.” Alas, as self-governing citizens of a constitutional republic, we cannot get off so easily. We can neither run nor hide. Aphoristic reasoning of the sort Justice Kennedy has produced is owed nothing by the citizens it purports to control. We must offer resistance to a decision so patently ungrounded in the Constitution that the dissenters themselves suggest it is owed no deference. The Supreme Court cannot command our obedience when it has not earned our respect. As Daniel Webster said, “God grants liberty only to those who love it, and are always ready to guard and defend it.”

Scalia refers to the majority opinion as nothing more than “a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government.” It is “couched in a style that is as pretentious as its content is egotistic,” betraying the “pride” that “goeth before a fall,” as the Court moves “one step closer to being reminded of [its] impotence.” As Scalia avers, Federalist No. 78 argues that the Court has “neither Force nor Will, but merely judgment.” When a judgment is as profoundly silly as the present one, it is not an option but a constitutional imperative for the people and the officials they have elected, who pledge to uphold not the Court, but the Constitution, to offer their fullest measure of devotion to that document.

Justice Alito notes that had the Court followed its own precedents, it would have found that the “liberty” guaranteed by the due process clause protects only those rights “‘that are deeply rooted in this Nation’s history and tradition.’ . . . And it is beyond dispute that the right to same-sex marriage is not among those rights.” The new “right” is a product of judicial fancy, pure and simple. Furthermore, in substituting its judgment for the judgments of the state legislatures, the Court wrongly asserts that marriage is recognized by government for the sake of “the happiness of persons who choose to marry.” But marriage has been recognized and promoted by government for the sake of children, who are the natural result of “the one thing that only an opposite-sex couple can do.” And we should add to Alito’s observation what is often ignored or denied: Although not all natural couples choose to have children, or are capable of doing so, this does not alter by one iota society’s compelling interest in holding out as normative, and particularly desirable, the only type of sexual relationship that is capable of doing what is required for the perpetuation of society. Further, there is reason to believe, and common sense would suggest, that children fare best when raised by two married parents who model distinctively male and female traits and virtues.

Alito is also concerned with downstream consequences. In addition to being a usurpation, the majority decision will be used to “vilify Americans who are unwilling to assent to the new orthodoxy.” Alito cries out for political action to check rogue courts, which are afflicted by the “deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” More than anything else, the decision shows that “decades of attempts to restrain this Court’s abuse of its authority have failed.”

Justice Thomas notes that the decision “is at odds not only with the Constitution, but with the principles upon which our Nation was built.” The doctrine on which it is based, substantive due process, “exalts judges” — and a bare majority of judges at that — “at the expense of the People from whom they derive their authority.” Even if the doctrine were not erroneous to begin with, maintaining the age-old definition of marriage does not deprive anyone of liberty — which, constitutionally, refers to freedom from physical restraint. And even if the word liberty were erroneously interpreted more broadly than that, it would refer only to freedom from governmental action — not a right to it. By twisting the constitutional and philosophical meanings of liberty, the majority undermines the central moral and political truths of the American Founding: the right of the people to consent, or not consent, to their government and the laws it makes. Like Alito, Thomas is concerned about what comes next. The Court has undermined the right to religious liberty, which is threatened in myriad ways by the majority’s intensely anti-religious moralism masquerading as jurisprudence.

Even Chief Justice Roberts — as consumed as he is with maintaining respect for the Supreme Court and its judgments — did what was unprecedented for him, namely, reading a summary of his reasons from the bench. In his full judgment, he notes that the Court has taken the “extraordinary” step of ordering every state to license and recognize that which is contrary to what has persisted “in every culture throughout human history.” Yet, the “Constitution leaves no doubt” that such a step is inappropriate. By taking it, the Court turns the United States into a government of men rather than laws, based on “an act of will, not legal judgment.” The “pretentious” majority even “feels compelled to sully those on the other side of the debate” in an “entirely gratuitous” manner. They are characterized as people who “demean,” “stigmatize,” “disparage,” “disrespect,” and “subordinate” “their gay and lesbian neighbors.” In addition to the assault on religious belief and political liberty that these words portend, the Court — asserting no limiting principle to its jurisprudence of dignity — has made further bitter conflict inevitable, over a whole host of creative individual and familial claims.

Previous marriage cases — including Loving v. Virginia, which struck down a state ban on interracial marriage — “require a State to justify barriers to marriage as that institution has always been understood.” By contrast with laws banning contraception or sodomy, laws that maintain the timeless understanding of marriage “involve no government intrusion. They create no crime and impose no punishment.” The Chief Justice reminds the Court of the need for restraint in “administering the strong medicine of substantive due process” — a lesson first taught by Dred Scott. Most of the majority opinion, he suggests, does not even have “the virtue of candor.” And he asks — somewhere between plaintively and angrily — “Just who do we think we are?”

Make no mistake: The words of the dissenters are weapons thrown our way by defecting soldiers. If we don’t seize them to fight, we will show we are now incapable, and unworthy, of self-government. In seizing them, we will be in good company. Responding to Dred Scott, Abraham Lincoln said: “Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.” And what Lincoln said of Dred Scott applies precisely to Obergefell: If the decision “had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.” Lincoln would find Obergefell, as he found Dred Scott, “wanting in all these claims to the public confidence.” It is therefore “not factious” to claim it has not settled the law.

Admittedly, it would be best if the coequal branches of government at the federal level checked this astounding judicial usurpation, through the exercise of their constitutional prerogatives. Executive refusal to enforce an unconstitutional judgment would be the most obvious place to start, but cannot be expected in the present instance, both because of the current occupant of the White House, and because what the Court has done is usurp legitimate state, rather than federal, authority. But this power of refusal, and the constitutional authority of Congress to limit the Court’s appellate jurisdiction and to impeach judges, are each incidents of a sober departmentalism and among possible remedies, in the long run, for the problem to which the dissenters point. Members of Congress who care about the Constitution should at least be discussing these remedies. And they should also be encouraging state and local officials to act, since this is really their ballgame.

The risks of state action are as obvious as they are overblown. An exercise of legitimate constitutional authority at the state level would invite the tired, insincere, or ill-considered claim that any assertion of “states’ rights” is necessarily tainted by history. But constitutionalists are with Abraham Lincoln, not Orval Faubus. They do not reject, but embrace, the Constitution and its underlying claim of equal natural rights, including the right of the people to engage in self-government — not to mention to defend the English language against those who would conscript it for political purposes. They must remember just how flimsy is the solitary arrow in the quiver of Obergefell apologists: The Constitution is what the Supreme Court says it is. Such an arrow can be deflected by even the most lightly armed.

We should note that many of the measures advocated by opponents of Obergefell are doomed to irrelevance. Politicians who call for more or stronger laws to protect religious liberty at the state or federal level are on a fool’s errand. Any laws that purport to restore or guarantee such liberty are likely to be narrowed or eliminated at the first pressure from special-interest groups, or overturned by courts — which, we should recall, are the problem. Some scholars advise the appointment of justices who reject judicial usurpation of politics. But in so doing they rely on a bromide that, as Justice Alito reminds us, has proved an epic failure in slowing the growth of this cancer on our body politic.

So what must the states and their subsidiary units — governors, legislators, county officers — do to fire a shot across the bow of judicial supremacy? It’s a shot that should have been fired years ago, at the federal level. But here we stand. State and local officials, with the support of the people as a body and brave individuals as necessary, must now play the hand they have been dealt and pledge: No voluntary compliance — whether by states, their officers, or ordinary citizens — coupled with determined resistance. Specifically, the following measures are now necessary for all constitutional officeholders, with prudential adjustments as local circumstances dictate.

First, they must call out the Supreme Court as illegitimate insofar as it wishes to impose the will it has expressed in Obergefell. They do not have to get too creative to do this — quoting the dissents, and cribbing arguments from them, would be an excellent start. They must calmly but firmly demand resignations, suggest impeachments, and advise their federal colleagues to act against the Court, using the full constitutional arsenal available to them. In doing this, they would be taking a page out of President Obama’s playbook, when he very publicly called the Supreme Court to account in his 2010 State of the Union Address.

Second, they should not license same-sex “marriage” without further specific guidance from geographically and constitutionally relevant courts. After all, a decision such as Obergefell is hardly self-enforcing — it reverses the judgment of the Court of Appeals for the Sixth Circuit in 16 consolidated cases. To these cases, no one will offer resistance.

Third, they should pledge — and mean — to appeal any further decision that aims to force compliance with Obergefell, to the maximum extent allowable by law.

Fourth, they should pledge to interpret any decision in a particular case as narrowly as possible — as applying only to the parties therein rather than as setting a precedent for future cases — to the maximum extent allowable by law.

Fifth, they should make clear that the meaning of “the maximum extent allowable by law” might itself be a matter of reasonable dispute.

Sixth, they must pledge to protect state and local officials from legal penalty, civil damages, or injunctive relief for refusing, on reasonable, constitutionally protected grounds, to issue marriage licenses.

Seventh, they must pledge state resources — including law-enforcement resources — to interfere, when necessary, with unreasonable civil, criminal, injunctive, or other court-ordered sanctions pursuant to Obergefell. As John Adams exhorted a decade before the American Revolution, liberty cannot be won, or maintained, unless many individuals and groups “join their harmony in the same delightful concert.”

In these times that try men’s souls, we must not shrink, but must pledge allegiance again to our flag, and to the Republic for which it stands — never allowing ourselves to think it symbolizes five justices of the Supreme Court. Let us stipulate that many of those who now reject Obergefell have much of which to repent, for what they have done and left undone to save the culture whose retreat now seems to make them strangers in a strange land. They might have come to the field late, but this does not mean they can stand down — their opponents will not allow it. Their choice is to join a battle they did not seek, or simply defer it, to their disadvantage. To these Americans of faith and good will, a strategic retreat from politics — even to strengthen in themselves, their families, and their friends what they understand to be the truth — would be imprudent, if not self-indulgent. They will find themselves surrounded even more quickly — their universe shrinking with every political deed they now leave undone.