We have great respect for judges. We have even greater respect for law. When judges behave lawlessly, it is the law that must be honored, not lawless judges.
The Supreme Court is supreme in the federal judicial system. But the justices are not supreme over the other branches of government. And they are certainly not supreme over the Constitution.
In Obergefell v. Hodges, five justices, without the slightest warrant in the text, logic, structure, or historical understanding of the Constitution presumed to declare unconstitutional the marriage laws of states that maintain the historic and sound understanding of marriage as the conjugal union of husband and wife.
Obergefell is not “the law of the land.” It has no more claim to that status than Dred Scott v. Sandford had when President Abraham Lincoln condemned that pro-slavery decision as an offense against the very Constitution that the Supreme Court justices responsible for that atrocious ruling purported to be upholding.
Lincoln warned that for the people and their elected leaders to treat unconstitutional decisions of the Supreme Court as creating a binding rule on anyone other than the parties to the particular case would be for “the people [to] have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
Because we stand with President Lincoln against judicial despotism, we also stand with these distinguished legal scholars who are calling on officeholders to reject Obergefell as an unconstitutional effort to usurp the authority vested by the Constitution in the people and their representatives. At the same time, we stand with the four dissenting Supreme Court justices in Obergefell who rightly noted that the judicially imposed redefinition of marriage is a judicial power grab that will — as Justice Alito wrote in his dissent — “vilify Americans who are unwilling to assent to the new orthodoxy.”
As the 2016 election season heats up, we call on all who aspire to be our next President to pledge to
- treat Obergefell, not as “the law of the land,” but rather (to once again quote Justice Alito) as “an abuse of judicial power”
- refuse to recognize Obergefell as creating a binding rule controlling other cases or their own conduct as President
- appoint judges and justices who respect the constitutional limits of their power, and
- support the First Amendment Defense Act to protect the conscience and free speech rights of those who hold fast to the conjugal understanding of marriage as the union of husband and wife.
Like Lincoln, we will not accept judicial edicts that undermine the sovereignty of the people, the Rule of Law, and the supremacy of the Constitution. We will resist them by every peaceful and honorable means. We will not be bullied into acquiescence or silence. We will fight for the Constitution and our beloved Nation.
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