Editor’s Note: A group of more than 60 legal scholars released a statement last week calling on all federal and state officeholders not to accept the Supreme Court's Obergefell v. Hodges decision--declaring a national right to same-same sex marriage--as binding precedent.
One of the signers and authors of the statement was Robert. P. George, the founder of the American Principles Project and McCormack Professor of Jurisprudence at Princeton.
"We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is," said George. "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."
We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hodges wherein the Court decreed, by the narrowest of margins, that every state in the country must redefine marriage to include same-sex relationships.
The Court’s majority opinion eschewed reliance on the text, logic, structure, or original understanding of the Constitution, as well as the Court’s own interpretative doctrines and precedents, and supplied no compelling reasoning to show why it is unjustified for the laws of the states to sustain marriage as it has been understood for millennia as the union of husband and wife.
The opinion for the Court substituted for traditional—and sound—methods of constitutional interpretation a new and ill-defined jurisprudence of identity—one that abused the moral concept of human dignity.
The four dissenting justices are right to reject the majority opinion in unsparing terms.
Justice Scalia refers to it as “a naked judicial claim to legislative … power; a claim fundamentally at odds with our system of government.”
Justice Thomas says the opinion “exalts judges at the expense of the People from whom they derive their authority” as it perverts the meaning of liberty into an entitlement to government action.
Justice Alito calls attention to the well-established doctrine 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 that it is “beyond dispute that the right to same-sex marriage is not among those rights.” He further points to the opinion’s tendency to reduce the purpose of marriage to “the happiness of persons who choose to marry.” He warns it will be used to “vilify Americans who are unwilling to assent to the new orthodoxy” and is yet another example of the “Court’s abuse of its authority.”
Chief Justice Roberts says “the Constitution leaves no doubt” that the majority’s “pretentious” opinion is incorrect. It even attempts to “sully those on the other side of the debate” in an “entirely gratuitous” manner.
If Obergefell is accepted as binding law, the consequences will be grave. Of the results that can be predicted with confidence, four stand out:
First, society will be harmed by being denied the right to hold out as normative, and particularly desirable, the only type of human relationship that every society must cultivate for its perpetuation. This compelling interest is strengthened by the fact that there is strong evidence to support what common sense suggests, namely, that children fare best when raised by their married mother and father who are both responsible for bringing them into the world and who provide maternal and paternal influences and care.
Second, individuals and organizations holding to the historic and natural understanding of marriage as a conjugal union—the covenantal partnership of one man and one woman—will be vilified, legally targeted, and denied constitutional rights in order to pressure them to conform to the new orthodoxy.
Third, the new jurisprudence of dignity is unlimited in principle and will encourage additional claims to redefine marriage and other long-established institutions.
Fourth, the right of all Americans to engage in democratic deliberation, and ultimately self-government, will be decisively undermined.
Any decision that brings about such evils would be questionable. One lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.
In 1788, James Madison wrote, “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”
In 1857, 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.” If a 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.” If, however, a decision is “wanting in all these claims to the public confidence,” it is “not factious” to resist it.
Obergefell is wanting in all these claims to the public confidence. It cannot therefore be taken to have settled the law of the United States.
We 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.
We call on all federal and state officeholders:
To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case.
To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.
To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.
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.
We emphasize that the course of action we are here advocating is neither extreme nor disrespectful of the rule of law. Lincoln regarded the claim of supremacy for the Supreme Court in matters of constitutional interpretation as incompatible with the republican principles of the Constitution. Our position is summed up in Lincoln’s First Inaugural Address:
"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
The proper understanding and definition of marriage is self-evidently a vital question affecting the whole people. To treat as “settled” and “the law of the land” the decision of five Supreme Court justices who, by their own admission, can find no warrant for their ruling in the text, logic, structure, or original understanding of the Constitution, would indeed be to resign our government into the hands of that eminent tribunal. That is something that no citizen or statesman who wishes to sustain the great experiment in ordered liberty bequeathed to us by our Founding Fathers should be willing to do.
(Institutional affiliations are for identification purposes only)
Bradley C. S. Watson, Philip M. McKenna Chair in American and Western Political Thought and Professor of Politics, Saint Vincent College
John C. Eastman, Henry Salvatori Professor of Law & Community Service, Dale E. Fowler School of Law at Chapman University
George W. Dent, Jr., Professor of Law, Case Western Reserve University School of Law
Robert P. George, McCormick Professor of Jurisprudence, Princeton University, Founder of American Principles Project
Matthew J. Franck, Director, William E. and Carol G. Simon Center for Religion and the Constitution, Witherspoon Institute
Daniel J. Mahoney, Augustine Chair in Distinguished Scholarship, Assumption College
Stephen H. Balch, Director, Institute for the Study of Western Civilization, Texas Tech University
Mickey G. Craig, William & Berniece Grewcock Professor of Politics, Hillsdale College
Paul Moreno, William and Berniece Chair in US Constitutional History, Hillsdale College
Lucas E. Morel, Class of 1960 Professor of Ethics and Politics, Washington and Lee University
Joseph M. Knippenberg, Professor of Politics, Oglethorpe University
Susan Hanssen, Associate Professor of History, University of Dallas
Wm. Barclay Allen, Dean Emeritus, Michigan State University
Daniel C. Palm, Professor of Politics and International Relations, Azusa Pacific University
Lynn D. Wardle, Bruce C. Hafen Professor of Law, J. Reuben Clark Law School, Brigham Young University
Scott FitzGibbon, Professor of Law, Boston College Law School
Stephen Casey, Casey Law Office, P.C.
James C. Phillips, J.D.
Joshua W. Schulz, Associate Professor of Philosophy, DeSales University
John S. Baker, Jr., Professor Emeritus of Law, Louisiana State University Law Center
Ralph A. Rossum, Salvatori Professor of American Constitutionalism, Claremont McKenna College
Walter Schumm, Professor of Family Studies, Kansas State University
Anne Hendershott, Director of the Veritas Center for Ethics in Public Life, Franciscan University of Steubenville
Gerard V. Bradley, Professor of Law, University of Notre Dame
Christopher Wolfe, Professor of Politics, University of Dallas
Michael D. Breidenbach, Assistant Professor of History, Ave Maria University
Robert Koons, Professor of Philosophy, University of Texas at Austin
Stephen M. Krason, Professor of Political Science and Legal Studies, Franciscan University of Steubenville; President, Society of Catholic Social Scientists
Micah J. Watson, William-Spoelhof Teacher-Chair in Political Science, Calvin College
Daniel Robinson, Fellow, Faculty of Philosophy, University of Oxford
David Novak, J. Richard and Dorothy Shiff Chair of Jewish Studies and Professor of Religion and Philosophy, University of Toronto
Adam J. MacLeod, Associate Professor of Law, Thomas Goode Jones School of Law, Faulkner University
Robert Lowry Clinton, Emeritus Professor of Political Science, Southern Illinois University Carbondale
Colleen Sheehan, Professor of Political Science, Villanova University
Peter W. Wood, President, National Association of Scholars
Michael M. Uhlmann, Professor of Politics and Policy, Claremont Graduate University
John Agresto, Former president of St. John’s College, Santa Fe, and the American University of Iraq
Mark T. Mitchell, Professor of Government, Patrick Henry College
Carol M. Swain, Professor of Political Science and Law, Vanderbilt University
Nathan Schlueter, Associate Professor of Philosophy, Hillsdale College
J. Daryl Charles, Affiliated Scholar, John Jay Institute
Ted McAllister, Edward L. Gaylord Chair and Associate Professor of Public Policy, Pepperdine University
David R. Upham, Associate Professor of Politics, University of Dallas
Thomas D’Andrea, Fellow, Wolfson College, University of Cambridge; Director, Institute for the Study of Philosophy, Politics, and Religion
Daniel Mark, Assistant Professor of Political Science, Villanova University
Hadley P. Arkes, Edward N. Ney Professor of Jurisprudence Emeritus, Amherst College; Director, James Wilson Institute on Naturals Right and the American Founding
Philip Bess, Professor of Architecture, University of Notre Dame
Jeffery J. Ventrella, Senior Counsel and Senior Vice-President of Student Training and Development, Alliance Defending Freedom
Teresa S. Collett, Professor of Law, University of St. Thomas School of Law
Jay Bergman, Professor of History, Central Connecticut State University
Robert L. McFarland, Associate Dean of External Affairs and Associate Professor of Law, Thomas Goode Jones School of Law, Faulkner University
Carson Holloway, Associate Professor Political Science, University of Nebraska, Omaha
Gary D. Glenn, Distinguished Teaching Professor Emeritus, Northern Illinois University
Paul A. Rahe, Charles O. Lee and Louise K. Lee Chair in Western Heritage, Hillsdale College
Angelo Codevilla, Professor Emeritus, Boston University
Bradley P. Jacob, Associate Professor of Law, Regent University School of Law
Raymond B. Marcin, Professor of Law Emeritus, The Catholic University of America
Matthew Spalding, Associate Vice President and Dean, Allen P. Kirby Center for Constitutional Studies and Citizenship, Hillsdale College
James A. Davids, Associate Professor of Law, Regent University School of Law
Ken Masugi, Senior Fellow, Claremont Institute
Edward J. Erler, Professor of Political Science Emeritus, California State University, San Bernardino
James W. (Jim) Richardson, Board of Directors, Christian Legal Society
Robert F. Sasseen, President and Professor of Politics Emeritus, University of Dallas
Lynne Marie Kohm, John Brown McCarty Professor of Family Law and Associate Dean of Faculty Development and External Affairs, Regent University School of Law