Is it legally, constitutionally, and historically appropriate to resist tyrannical decisions by the Supreme Court?
It is constitutionally expected, historically practiced, and prudentially wise to push back on the tyrannical exercise of authority by the Supreme Court over the people and the states. This idea is based, in part, on what Abraham Lincoln said after the Court’s Dred Scott decision. He said that when a Supreme Court decision:
- Does not “accord both with common sense, and the customary understanding of the legal profession,”
- Has not “been made by the unanimous concurrence of the judges,”
- Does not have “any apparent partisan bias,”
- Is not “in accordance with legal public expectation,”
- Is not “in accordance … with the steady practice of the departments throughout our history,” and
- Is not “based on assumed historical facts which are not really true,”
then that decision may be considered settled and resistance to it “factious” only if it has “been affirmed and re-affirmed through a course of years.”
Application of that test to Obergefell leads to only one conclusion, namely, that Obergefell is not “settled,” should be given little to no precedential value, and can be constitutionally resisted.
Lincoln’s test may first be applied to the Obergefell decision as follows:
- Same-sex “marriage” is not in accord with common sense and not in accord with the “customary understanding” of marriage in the legal profession.
- It was not only not unanimous, but provoked four of the most strongly worded dissents in the history of the Court.
- Bias on the part of Justice Ginsburg, prior to oral arguments in Obergefell, was reflected in her statement that the public seemed ready to accept same-sex “marriage” and in her reference to Constitutional rights in connection with a same-sex “marriage” she officiated.
- It was not in accordance with the legal expectation of the states but, to the contrary, the expectation of the people of the states was that marriage should remain a relationship between a man and woman as evidenced by the passage of thirty-one state constitutional amendments defining marriage as one man and one woman.
- The recognition of same-sex “marriage” has not been the “steady practice … throughout our history,” but to the contrary the first legal same-sex “marriage” in the history of America was “authorized” by a state court in 2004.
- It was based on a wrong understanding of the historical facts regarding the nature of marriage, extrapolating from matters like the abolition of coverture that the fundamental nature of marriage as a man and a woman had somehow also evolved.
Since Obergefell fails the first part of Lincoln’s test, it can be considered “settled” law and deserving of deference only if the Court’s authority over the states to define marriage has been “affirmed and reaffirmed through a course of years.” This has not been done in regard to a number of issues related to the sexual complementariness of the parties to a marriage. Furthermore, this part of Lincoln’s test envisions a number of legislative actions over the years resisting by various theories a Court decision if one theory is found unconstitutional.
If Lincoln’s statement reflects an appropriate, historical test for evaluating whether the exercise of authority by the Supreme Court is to be accepted by other branches of civil government or by the states, then Obergefell v. Hodges is not “settled law.”
Thus, it is more than appropriate for citizens and the states to resist the Court’s ruling.
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