Princeton’s Robert George – the conservative Catholic tribune – has enlisted other lawyers and scholars in a call for “constitutional resistance” to Obergefell v. Hodges, which declared that same sex couples dignity rights bar states from denying them the right to marry. He invokes Abraham Lincoln’s First Inaugural and its famous call to limit the impact of Dred Scott v. Sanford:
<"the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
George’s call to `resist’ the high court’s authority has been welcomed (with minor caveat) by conservatives like Kevin Walsh. On the other side of the spectrum Lyle Denniston has warned that this is a call to defy the law. But it seems to me that Howard Wasserman is right that George et al. are within the bounds of lawyerly advocacy.
The call for resistance is a provocative headline. But it is revealed as hyperbole when the statement is parsed. The “Call” seems to differ little rhetorically from that heard on the political left to amend the Constitution to reverse Citizens United. – gwc
We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hodges wherein the Court decreed, by the narrowest of margins, that every state in the country must redefine marriage to include same-sex relationships.
The Court’s majority opinion eschewed reliance on the text, logic, structure, or original understanding of the Constitution, as well as the Court’s own interpretative doctrines and precedents, and supplied no compelling reasoning to show why it is unjustified for the laws of the states to sustain marriage as it has been understood for millennia as the union of husband and wife.
The opinion for the Court substituted for traditional—and sound—methods of constitutional interpretation a new and ill-defined jurisprudence of identity—one that abused the moral concept of human dignity.
Obergefell is wanting in all these claims to the public confidence. It cannot therefore be taken to have settled the law of the United States.
We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is.
We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.
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.