If SCOTUS Mandates Same-Sex Marriage, Must States Follow Suit?

Matthew Trewhella
By Matthew Trewhella | June 22, 2015 | 1:48 PM EDT

Tattered American flag. (AP Photo/Darlo Lopez Mills)

The Federal Government seems bent on destroying Western Civilization.  After a long litany of laws, policies, and court opinions designed to undermine and attack the family and Christianity, the final blow could be decreed in just the next several days.  I speak of the impending ruling on homosexual marriage.

It appears the U.S. Supreme Court is about to trample the constitutions of 31 states – another frontal assault against family.  Sociologists like Carle Zimmerman (Family and Civilization, (Intercollegiate Studies Institute; 2nd abridged edt., 2008)) and J.D. Unwin (Sex and Culture, (Oxford University Press; 1st edt., 1934)) have proven conclusively that when nations denigrate God’s created order regarding family, they cannot survive.  There has never been an exception in the history of the world.

Every good Statist knows that in order to strengthen the State – you have to weaken the family.  The federal government has been imposing law and policy to accomplish that end for decades now.  Meanwhile, the lower magistrates – who in a true federalism know they possess lawful authority and a duty to interpose – have decided to hide behind the lie that “A federal court has ruled, so we can do nothing but obey.”

Most Americans no longer understand that the states were never intended to be mere provinces of the federal government.  They were never intended to be mere implementation centers for unjust and immoral federal laws, policies and court opinions.

Herbert Schlossberg speaks to this point in his magnum opus, Idols for Destruction.  He says, regarding the lesser magistrates:

“The framers of the American Constitution were conscious of the excesses to which centralized political systems were prone, and their solution was to devise multiple levels of authority.  The existence of states, cities, counties, townships, and independent taxing authorities, which, to apologists for the state, has been a messy derogation from beneficent centralized power, has saved us from some of the assaults on freedom that others have suffered.”  [Herbert Schlossberg, Idols for Destruction: Christian Faith and Its Confrontation with American Society (Nashville: Thomas Nelson Publishers, 1983) 213.]

Schlossberg points out, however, that in our day these “intermediate institutions, which formerly served to check the central power, have largely atrophied.”

He later reveals how the federal government has pulled this off:

“After three-quarters of a century, the new nationalism has borne bitter fruit.  People who have despised the right of localities to govern themselves have delivered them into the hands of federal masters.  Local politicians have acquiesced in the mugging of the provinces because in return for giving up political authority they have received monetary benefits.”  [Schlossberg, Idols, 214.]

The U.S. Constitution did not bind the states to a suicide pact with a lawless federal government.  The idea that the states (and lesser authorities) must obey a lawless federal judiciary is a fiction.  The insanity being imposed by the federal government has reached such a fever pitch that people have begun to question, “At what point do we offer resistance to this federal behemoth?”  And more importantly, “What form of resistance is legitimate and has a chance for success?”

The Doctrine of the Lesser Magistrates

A tool that is found in Scripture and proven in history to rein in tyrannical acts by the higher authority is known as “the doctrine of the lesser magistrates.”

The lesser magistrate doctrine states that when a higher-ranking civil authority makes unjust or immoral laws, policies, or court opinions, the lower or lesser-ranking civil authority has the God-given right and duty not to obey the higher authority.  If necessary, the lower authority may even actively resist the superior authority.

The foremost treatise ever written on the doctrine was penned by John Knox.  His Appellation to the Nobles of Scotland (1558) cited over 70 passages of Scripture (John Knox, Selected Writings of John Knox, edit. Kevin Reed (Dallas, TX: Presbyterian Heritage Publishing, 1558/1995)).  Knox insisted that the nobles, as lesser magistrates, were responsible to protect the innocent and oppose those who made unjust or immoral laws or decrees.

An apt summary of the doctrine was actually voiced by a higher magistrate, Roman Emperor Trajan.  While giving a subordinate a sword, Trajan stated to him, “Use this sword against my enemies if I give righteous commands, but if I give unrighteous commands, use it against me.”

John of Salisbury, in his work Policraticus (1159), spoke of the duty of lesser magistrates when faced with tyrannical acts by the higher authority.  He wrote:

“Loyal shoulders should sustain the power of the ruler so long as it is exercised in subjection to God and follows His ordinances; but if it resists and opposes the divine commandments, and wishes to make me share in its war against God, then with unrestrained voice, I answer back that God must be preferred before any man on earth.”  [John of Salisbury, The Statesman’s Book of John of Salisbury – Policraticus, trans. John Dickinson (New York, NY: Russell & Russell, 1159/1963) 258.]

And now, here in our day – we are confronted with a tyrant.

The interposition of the lower magistrates is not subjective or lawless.  There are only three reasons for open defiance to the higher civil authority.  First, they are to oppose and resist any laws or edicts from the higher authority that contravene – violate, oppose, or contradict – the law or Word of God.  Second, they are to protect the person and property of those who reside within their jurisdiction from any unjust or immoral laws or actions by the higher authority. Third, they are not to implement any laws or decrees made by the higher authority that violate the U.S. Constitution or their state constitution, and if necessary, resist them.

The interposition of the lower civil authority is not anarchy or chaos.  Rather, when the higher authority makes laws, policies, or court opinions which accomplish any of these three reasons, it is they who have acted as anarchists; it is they who have brought chaos.  The interposition of the lower magistrates acts to restore order.

Application of the Doctrine in Our Day

When the higher authority puts the force of law behind the behavior of perverse and base men, the interposition of the lesser magistrates is necessary.  How would such interposition be applied in our day?

A governor of a state should refuse to implement any federal court opinion that tramples the state’s constitution and imposes homosexual marriage upon the people.  Unfortunately, all of the governors who have had their state’s constitutions trampled have hidden behind the common lie of the lower authorities, namely, “A federal court has ruled, we must obey.”

Most point to the Supremacy Clause of the U.S. Constitution to justify their cowardice, but the Supremacy Clause – Article 6, paragraph 2 of the U.S. Constitution – nowhere declares that the U.S. Supreme Court, nor any federal court, has supremacy over the constitutions or laws of the states or the judges of states.  Rather, it states that the U.S. Constitution has supremacy and laws or treaties made in accordance with the Constitution.

That this is fact is not only seen in the plain reading of the Clause, but also by the actions of the only state that thus far has stood in defiance of federal tyranny – Alabama.  On January 23, 2015, a federal judge trampled Alabama’s constitution and demanded that homosexuals be allowed to marry.

In a separate mandamus proceeding, the Alabama Supreme Court responded to this federal lawlessness by ordering the probate judges that issue marriage licenses to not issue them to homosexuals.  This stopped all such “marriages” cold.  No homosexuals have been married in Alabama since this act of interposition by the Alabama Supreme Court.

Governors are not the only state officials in a position to uphold their oath of office and interpose.  County clerks and probate judges who issue marriage licenses could refuse to issue them to homosexuals.  Some already have.  Most in Alabama refused to issue them even before the Writ of Mandamus by the state supreme court ordering them not to issue them.

State legislatures should support such brave magistrates with laws and resolutions to protect them.  Any and all positions of civil authority – whether through election or appointment – should refuse to be party to such a depraved action as two men or two women marrying.  They should also refuse to re-write their state statutes to comply with such an immoral federal imposition.

County boards, village boards, town boards and city councils can pass laws that interpose against such immoral federal usurpation.

Silence and compliance always allows the tyrant authority the convenience of covering his unjust or immoral actions.  If everyone just goes along with the tyranny of the higher authority, the tyranny they have imposed can more readily go unnoticed.  When men take a stand in defiance of tyranny, however, it forces the tyrant authority out of his lair as he responds by hammering those who refuse to join him in his rebellion against God.  People begin to see the tyrant authority for what it is.

When civil authority acts tyrannically, it always counts on the compliance of its lower authorities.  Peasant revolts are easily put down.  But when the lesser magistrates refuse obedience – that is when tyrant civil authority has a problem on its hands.

America’s founders never expected the federal government or its judiciary to be the lone arbiter of its actions.  James Madison, the architect of the U.S. Constitution, stated that when the federal government makes unjust or immoral laws or policies, “… the states who are parties thereto [parties to the U.S. Constitution] have the right, and are in duty bound, to interpose for arresting the progress of evil.”  (Virginia Resolution, 1798.)

Thomas Jefferson stated, “… and that whensoever the general government [the federal government] assumes undelegated powers, its acts are unauthoritative, void, and of no force.”  (Kentucky Resolution, 1798.)

The Role of the People

The people play a huge role in the doctrine of the lesser magistrates.  Often, the lower civil authority will refuse to do what is needed and necessary.  They will refuse to confront the tyrant’s higher authority.  The people must prod their lower magistrates to do so.

Abolitionist Frederick Douglass once stated:

“Power concedes nothing without a demand.  It never did and it never will.  Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or both.  The limits of tyrants are prescribed by the endurance of those whom they oppress.”  [Frederick Douglas, West India Emancipation Speech, Canadaigua, NY; August 3, 1857.]

The people must demand that their lower civil authorities defy federal tyranny.  They must not allow them to hide behind the lie “we must obey.”  The lower magistrates often will not act until the people rally them.  When the lower authority does defy, it is imperative that the people support them with their resources, with their bodies, with their very lives.

The people need to build relationship with their local authorities.  The people should (and do) – by their action or inaction – play a role of immense importance when it comes to the effectiveness of the lesser magistrates’ interposition against tyranny.

When it comes to homosexual marriage being forced upon the states, the federal government has (i) contravened the law, Word, and created order of God, (ii) attacked our persons and property including our sons and daughters, and (iii) violated its limited delegated authority in the U.S. Constitution – they have accomplished all three in this immoral action.  The lower civil authority is duty bound to interpose against such insanity being paraded under the color of law.

The lesser magistrate doctrine was first formalized by the pastors of Magdeburg, Germany in 1550.  In what is known as the Magdeburg Confession, they proved from Scripture and history that lower civil magistrates have the God-given right and duty to defy a tyrant higher civil authority.

In near-prophetic fashion, they used marriage as an example of when lesser remedies would not work and open defiance by the lower authorities was necessary.  They stated in the Confession:

“Therefore, if now the leader or Caesar proceeds to such height of insanity only in that of natural knowledge which governs the society of civil life and uprightness, that he abolishes the law concerning marriages and chastity, and himself sets up a contrary law of roving unclean lusts … in such a case, doubtless, no clear-thinking person would have any hesitation about the divine right and commandment that such a leader or monarch ought to be curbed by everyone in his most wicked attempt, even by the lowest of the lowest magistrates with whatever power they may have.” [Matthew Colvin, trans., The Magdeburg Confession (1550) (North Charleston, SC: Createspace Publishing, 2012) 60.]

The interposition of the lesser magistrates reminds the higher authority that their authority is delegated and limited.  No man who holds government office rules with autonomy.  The authority he has is delegated to him by God.  All those in positions of authority stand accountable to God – even the Federal Government.

The people have the duty to rally their lesser magistrates in support of what is right, and against the immoral actions of the federal government.  If the U.S. Supreme Court legalizes homosexual marriage, no state with constitutional provisions or statutes against sodomite marriage should recognize the Supreme Court’s immoral ruling, rather they should defy it.

Matthew Trewhella is the pastor of Mercy Seat Christian Church (  He and his wife, Clara, have eleven children and reside in the Milwaukee, Wisconsin area.  You can obtain his book “The Doctrine of the Lesser Magistrates: A Proper Response to Tyranny and A Repudiation of Unlimited Obedience to Civil Government.”


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