The doctrine of lesser magistrates —
What should a biblical Christian do when the State commands that which God forbids or forbids that which God commands? Having recently written about principled Christian disobedience (PCCD), we now turn to the doctrine of lesser magistrates for some guidance in this present darkness where, increasingly, good is called “evil,” and evil is called “good.” I humbly submit that we have a duty to obey God rather than man.
Relying on scripture, the protestant reformers developed a political theory to address how Christians may appropriately respond when faced with the tyranny of a rogue emperor or despotic king. A “lesser magistrate” is a lower government authority, relative to the king or other ultimate authority, charged with guarding the God-given liberties of the people under his care. The concept here is that the lesser magistrate is imbued with the responsibility and authority to shield citizens by resisting, and when necessary, rebelling against the tyranny of a higher authority.
John Calvin wrote in his Institutes of the Christian Religion that while individual Christians are generally commanded to submit to ruling authorities (See Romans 13:1-6), “popular magistrates” have “been appointed to curb the tyranny of kings” when higher authority exceeds its limits and issues decrees that are against God’s instructions. The Lutheran Magdeburg Confession of 1550, argued that “subordinate powers” in a state, faced with a scenario where the “supreme power” is working to destroy true religion, may exceed non-cooperation with the supreme power and actually help the faithful to resist.
John Locke, a committed Christian, explicitly wrote in his Two Treatise on Government that the people had a right of revolution as a check on statist tyranny. Sir William Blackstone, the eminent English jurist, whose Commentaries on the Laws of England were studied by many of our founders including Thomas Jefferson, wrote “Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. No enactment of man can be considered law unless it conforms to the law of God.” As the Declaration of Independence in 1776 expressed it, natural law taught that the people were “endowed by their Creator with certain unalienable Rights” and could alter or abolish government when the State becomes “destructive” of those rights. Thus, the authority of the lesser magistrate (i.e. colonial governments) to resist tyranny and the power of the people themselves to rise up in revolution when their inalienable rights are trampled by despotic supreme rulers, were the twin philosophical foundations that merged in the American Revolution.
And, just when you may think that the spirit of 1776 is dead and buried, some thought leaders have begun to roar like bold lions against the megalomaniacal tyranny of the freedom-pilfering U.S. Supreme Court. Earlier this month, a document was crafted and signed by more than 60 constitutional attorneys and legal experts, including Robert George (Princeton University), John Eastman (Fowler School of Law, Chapman University), Jeffrey Ventrella (Alliance Defending Freedom, Sr. Counsel), and Steven D. Smith (University of San Diego School of Law).
Steven Smith, with whom I participated in a panel discussion regarding religious liberty in the public square in 2014 at USD, and the other signatories, confirmed the line of reasoning embodied in the article I wrote last month titled The Constitution is the Law of the Land, Not Same-Sex Marriage. After confirming that the U.S. Constitution does not give the federal judiciary the power to redefine marriage, the scholars urged government officials to refuse to acknowledge or enforce Obergefell v. Hodges. In other words, they are urging lesser magistrates to declare Obergefell a legal nullity and stand against the federal court’s constitutionally abusive power grab:
“Any decision…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.
Therefore….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.”
Last month, Tennessee legislators introduced a bill seeking to nullify Obergefell, declaring that marriage between one man and one woman “remains the law in Tennessee, regardless of any court decision to the contrary. Any court decision purporting to strike down natural marriage, including Obergefell v. Hodges, is unauthoritative, void and of no effect.” The bill instructs that the state attorney general “shall defend any state or local government official from any lawsuit regarding the official’s recognition of natural marriage.”
By making these courageous stands in the face of strong cultural headwinds, the Tennessee lawmakers and legal scholars do not advocate general legal anarchy; rather they are actually affirming the U.S. Constitution and the rule of law. They have issued a clarion call to all magistrates, both state and federal, to interpose themselves as a buffer between a lawless U.S. Supreme Court, on one hand, and the states and citizens that Obergefell profoundly negatively impacts, on the other. When Kentucky Clerk Kim Davis refused to same-sex “marriage” licenses, I believe that she was exercising principled Christian Civil Disobedience (PCCD) and was acting in the tradition of the doctrine of lesser magistrates, attempting to shield citizens from Obergefell.
This is critically important because if the Obergefell ruling stands, it will decimate the right of the states and we the people to act democratically to define marriage, and by extension place any meaningful limits on absolutist supreme federal power. And, it destroys the right of individuals and religious organizations to freely live, act, and speak according to the dictates of their conscience. The right to vote and religious freedom are fundamentally important civil liberties we simply cannot afford to lose in America.
— by Dean R. Broyles, Esq.
Broyles is a constitutional attorney serving as the President of The National Center For Law & Policy (NCLP), an organization fighting to promote and defend religious freedom. Copyright© The National Center For Law & Policy. Reprinted with permission.