by Travis Weber, J.D., LL.M.
October 13, 2015
Last week, a number of scholars and law professors released a statement calling on all officeholders to resist — within the grounds of their own constitutional authority — the Supreme Court’s illegitimate and groundless ruling in Obergefell v. Hodges. The scholars’ statement points to the grave consequences of letting this decision continue to be treated as legitimate and binding precedent on the entire nation, and urges public officials to exercise their independent authority to follow the Constitution regardless of Obergefell’s dubious claims:
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.
The authors of the statement remind us that the Supreme Court is not the only branch of government granted authority by the Constitution. While the Supreme Court has the authority and responsibility to decide cases and controversies between parties, it does not have the authority to declare entirely new doctrines of law binding on parties not before the court.
Quoting President Lincoln, the authors observe:
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.
The authors quite understandably conclude that “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.”
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.
At Family Research Council, we recognize the Supreme Court as the highest court in the land, charged with adjudicating disputes between parties and determining those parties’ rights under the Constitution. However, the Supreme Court lacks the authority to decide the meaning of certain matters, one of which is an institution — marriage — which predates civil government and is only defined by God.
This must not be forgotten — neither by public officials nor those they are supposed to serve.