A Statement Calling for Constitutional Resistance to Obergefell v. Hodges, the Supreme Court’s ruling in favor of same-sex marriage, was recently issued by anti-gay social theorist Robert P. George, a professor of jurisprudence at Princeton University, and co-signed by others on the anti-gay right.
Their statement calls on “all federal and state officeholders” (1) To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case; (2) To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions; (3) To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.
The arguments proffered by the statement’s signers are, basically, that the majority’s reasoning in Obergefell was wrong and therefore it is not binding (apparently, officeholders are only sworn to uphold Supreme Court decisions they agree with). They also contend, as do others on the far right, that Supreme Court rulings are only applicable to the those specific parties that brought the suit and that the court has no power to overturn state laws passed by legislative majorities.
Some of this language is intended to sound vaguely libertarianish, but libertarians don’t believe in upholding majority dictates that violate individual rights.
The Constitution’s framers sought to limit the power of the majority to curtail the liberty and rights of individuals. As George Will recently pointed out, “In a democracy, the strongest force is the majority, whose power will be unlimited unless an independent judiciary enforces written restraints, such as those stipulated in the Constitution.”
Interestingly, some on the political left have also, when it suited their needs, argued that it is improper for courts to overturn laws passed by a legislative majority. These arguments were recently heard in some of the defenses of Obamacare after it came under judicial scrutiny.
Although the anti-gay-marriage statement’s co-signers high-handedly compare Obergefell to Dred Scott, their own actions are similar to southern segregationists who believed that Brown v. Board of Education was not binding on states that preferred to continue treating black students as separate and unequal.
The George manifesto was trumpeted by anti-gay activist Maggie Gallagher, who notes that George has also launched a PAC, the Campaign for American Principles, to support like-minded office seekers.
Be that as it may, this is all a rearguard action by the defeated. While they may envision a nation full of Kim Davises, those officials who believe their allegiance to fundamentalist religion supersedes their duty to uphold the law as interpreted by the highest court will remain few and far between.
And they have done a disservice to those private citizens who argue for the right to be left alone and not compelled to provide services to same-sex weddings. The cause of these independent businessowners is now, to their great disadvantage, mixed together with that of intransigent government officials whose very job is to treat all citizens as equal under the law they have sworn to uphold.
Elsewhere, blogger Jon Rowe reveals in Really Professor George, et al.? that George’s statement selectively quotes (or, in effect, misquotes) Abraham Lincoln, who, Rowe shows, “obviously disagreed with Dred Scott” and urged working to overturn it, but (despite George’s assertion) did not believe Supreme Court decisions could be summarily ignored.
More. Dallin Oaks, a member of the Council of Apostles, the LDS church’s governing body, repudiates Kim Davis (and the whole Robert George crowd), signaling Mormon officeholders not to be lured into their folly:
“All such [government] officials take an oath to support the constitution and laws of their jurisdiction. That oath does not leave them free to use their official position to further their personal beliefs—religious or otherwise—to override the law. Office holders remain free to draw upon their personal beliefs and motivations and advocate their positions in the public square. But when acting as public officials they are not free to apply personal convictions—religious or other—in place of the defined responsibilities of their public offices. All government officers should exercise their civil authority according to the principles and within the limits of civil government. A county clerk’s recent invoking of religious reasons to justify refusal by her office and staff to issue marriage licenses to same-gender couples violates this principle.”