Commentary

Legal Scholars Urge Federal and State Officeholders: Refuse to Accept Same-Sex Marriage Opinion as Binding Precedent

By Robert P. George | October 9, 2015 | 4:36pm EDT
Gay marriage advocate waves rainbow flag in front of U.S. Supreme Court. (AP Photo)

Editor’s Note: A group of 60-plus individual scholars, including Robert George, recently released the following press release calling on public officials and American citizens to resist the U.S. Supreme Court’s ruling last term in the Obergefell v. Hodges case.

A group of over sixty prominent legal scholars have released a statement calling on public officials and American citizens to resist the U.S. Supreme Court’s ruling last term in the Obergefell v. Hodges case that redefined marriage for every state in the nation. The statement was released during the opening week of the Supreme Court’s 2015-16 term.

The legal scholars said that the Obergefell ruling is "lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution” and “must be judged anti-constitutional and illegitimate.” They called on the other branches of government and American citizens to treat the decision as illegitimate and an unbinding precedent that has not settled the law in 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.

The legal scholars called on all state and federal 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. 

The sixty-four legal scholars who signed the statement emphasized that the course they are advocating is neither extreme nor disrespectful of the rule of law, relating their position to that of President Lincoln who regarded the claim of supremacy for the Supreme Court in matters of constitutional interpretation as incompatible with the republican principles of the Constitution. Quoting from President Lincoln’s first inaugural address, the scholars said that if Americans succumb to the idea of judicial supremacy, “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.

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.

Robert P. George, founder of American Principles Project, McCormick Professor of Jurisprudence at Princeton University and one of the authors of the statement.

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