In recent months, confused politicians and pundits alike have been mindlessly parroting phrases like “it’s the law of the land” and “it’s settled law” when discussing Justice Kennedy’s same-sex “marriage” opinion (Obergefell v. Hodges). This is typically followed by advice along the lines that public servants like Kentucky County Clerk Kim Davis and the rest of us should just “get over it,” submit, and move on to dealing with other more important issues. Are they right? Is same-sex “marriage” now the law of the land? Not even close! As Chief Justice John Roberts pointed out in his Obergefell dissent, “[D]o not celebrate the Constitution. It had nothing to do with it.”
As we appropriately celebrate Constitution Day this month, regardless of what their personal feeling about marriage’s definition are, I strongly suggest the talking heads at CNN and Fox News actually read the Constitution and learn what it means. If the U.S. Constitution is to mean anything and retain any legitimate authority, its meaning must be fixed and objective, uninfluenced by the shifting emotions and biases of judges. The Constitution is easily the most brilliant political document in the history of mankind. And nowhere in its text are the elite lawyers sitting on the U.S. Supreme Court’s bench delegated the unfettered discretion to unilaterally amend it by fabricating and announcing new “constitutional rights.” We the people have not designated them as America’s enlightened cultural oracles, nor endowed them with a mystical pagan power to speak for the gods and “evolve” our society according to their personal notions of the public good, proclaiming their subjective social sophistry “constitutional.”
“This Constitution…shall be the supreme law of the land….” (Art. 6, clause 2), not the activist progressive personal opinions of judges! Marbury vs. Madison granted the Supreme Court the power of “judicial review.” However, the Constitution does not grant the judiciary the unfettered authority to make up the Constitution as they go along. In fact, the only truly “settled law” here is the actual objective text of the United States’ Constitution, not the personal subjective thoughts and feelings of elitist lawyers, no matter how cleverly or melodramatically expressed. It has taken us more than 200 years, but I fear we have foolishly traded the tyranny of King George for the tyranny of the U.S. Supreme Court.
Article III of the U.S. Constitution created the federal judiciary, whose judges are supposed to only interpret and apply the law, not create it out of whole cloth! The only way the U.S. Constitution can be legitimately changed is by the amendment process spelled out in Article V. Amendment by any other means, including flowery “liberty” encrusted legalese, is despotic usurpation and a fraud on the American people. We the people must rise up, declare our faux emperors have no robes, and put an end to the high court’s naked charade. The Constitution is not a “living, breathing” thing that should be shaped and morphed by the “opinions” of the court. It is actually quite dead, chiseled in stone until properly amended. And if someone doesn’t like the U.S. Constitution or wants to expand its protections and rights to new groups, amend it legitimately! Otherwise, shut up and live with it. Article III does not delegate to enlightened progressive jurists the unchecked authority to tyrannically impose their distorted vision of utopia on the states and the American people.
In fact, constitutionally, marriage is solely a state issue. The definition or regulation of marriage is not a federal issue, period. It is not one of its “limited enumerated powers” (See Art. 1 § 8) and as the 10th Amendment explains, the rights not delegated to the federal government are retained by the states and by the people. And, regarding the definition of marriage, more that 50 million voters in more than thirty states recently voted to retain the traditional man-woman only definition. Both Kentucky and California, for example still have man-woman only marriage on the books, as do many other states. But that didn’t stop the U.S. Supreme Court from bulldozing over the Constitution, the will of the people, and 5,000 years of recorded history!
As a nation of laws, not men, we have committed by the social compact we call the U.S. Constitution to respect the words written therein as our ultimate guide, rather than the transient feelings, biases, and proclivities of individual men and women. The Supreme Court has proven again and again that it is far from infallible. Indeed, the divided (5-4) opinion in Obergefell “redefining” marriage is not a shred more legitimately “the law of the land” than have been the many other opinions without a constitutional basis throughout U.S. history. Examples include Dred Scott (1858) (denying personhood and citizenship to African Americans) and Plessy v. Ferguson (1896) (affirming racial segregation). Indeed, it was the promise of equality embodied in the Declaration of Independence and Constitution, and as confirmed by the 14th Amendment, that led to correcting these grave errors committed by none other than the U.S. Supreme Court.
The 14th Amendment was enacted in 1868 to address the civil rights of recently freed slaves, to give them legal “due process” protections and “equal rights” under the law. This was indeed a very good thing to do. But the 14th Amendment has nothing to do with the definition of marriage or redefining marriage. But that didn’t stop Justice Kennedy from casting aside any notion of judicial restraint and, based very loosely on court precedents (not constitutional texts), proceeding to super-legislatively enacting his unprecedented and dangerous grand social experiment. Kennedy’s ad hoc legal recipe was quite bizarre. A dash of equal-protection-ish emotion, a pinch of fundamental rights-ish feelings, and voila! We have a new right!
However, when the Supremes act despotically on their own prerogative, outside of the authority and beyond the boundaries of the text of the Constitution, they act as rogue social activists, unlawfully “amending” the constitution. In doing so, they unilaterally infuse divisive and profoundly destructive weakness into fabric of our nation including our federal system of government. This weakness undermines the legitimate power of the federal government, the authority of states, and the sovereignty of “we the people.” Ultimately, rather the consolidating their limited power of judicial review, the court foolishly undermines the very foundation of its authority, causing citizens to appropriately despise and disparage its usurpation of the peoples’ power and our civil rights, including our right to cast meaningful votes in elections.
Thomas Jefferson, early on, understood the danger of ceding unquestioned authority to the federal judiciary and was deeply concerned: “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps …. their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.” In accord, Abraham Lincoln, who as President appropriately criticized and ignored Dredd Scott, declared, “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”
In sum, the “right” to same-sex marriage is no more constitutionally sound or morally right than the right to kill babies in the womb (Roe v. Wade) and will prove to be even more culturally divisive. Neither is it any more constitutionally authoritative than the dark Dred Scott decision. Abraham Lincoln was perfectly right to ignore Supreme Court sophistry then. And the pundits on CNN and Fox News, as well as State and local officials like Kim Davis should give no quarter or credence to the personal opinions of five attorneys in Washington D.C. who acted illegitimately in clear violation of the U.S. Constitution. Let me be clear. I am not advocating general lawlessness or anarchy here; I am only advocating employing peaceful civil disobedience to oppose an unjust and unconstitutional ruling, and faithfulness to the higher law—the U.S. Constitution.
By illegitimately fabricating a new “right” and coercively imposing it on the states and “we the people,” the court has usurped its legitimate jurisdiction, has acted despotically and, quite frankly, must be ignored. State governors, legislators, local mayors, sheriffs and other public officials should be standing up against federal judicial usurpation and tyranny by telling the U.S. Supreme Court that they will neither acknowledge, nor follow, nor enforce the high court’s specious redefinition of marriage. The duty of lesser magistrates to uphold and defend the Constitution requires them to protect us from an out-of-control unconstitutional judiciary.
Whatever its source, within or without, we must vigilantly oppose tyranny and stand for freedom whenever despotism threatens America. We owe it to our children and grandchildren.
— 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.