Obergefell v. Hodges: Illegitimate, Unlawful, and a Fraud on the American People

There is simply no other way to say it.

The Supreme Court’s decision today redefining marriage to include couples of the same sex is wholly illegitimate and unlawful. A nullity. Worthy only to be disobeyed.

Anyone who says otherwise — that the rule of law requires recognition of same-sex marriage — is committing a fraud. And any State official — like Governor Robert Bentley of Alabama — who says that his oath of office requires unconditional obedience to the Supreme Court’s mandate to issue same-sex couples licenses to marry is mistaking his oath to the Constitution as if it were an oath of absolute obedience to five justices who happen to be sitting on the nation’s highest court.

As Chief Justice Roberts in dissent has described the action taken today:

“Five lawyers have closed debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people ….”

And just who are these lawyers? Justice Scalia reminds us that they are all educated at either Harvard or Yale, from the east- and west- coasts, not from the vast middle of the country, and not a single one an evangelical Christian or a Protestant, and then observes:

“The strikingly unrepresentative character of the body voting on today’s upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.”

Indeed, from the outset of his bare majority decision, Justice Kennedy did not even act like a judge. Rather, he wrote as if he were an existentialist philosopher seeking the meaning of life, as if the “liberty” protected in the Constitution was a personal quest “to define and express [one’s personal] identity.”

But the Constitution is not some philosophical work written by Jean Paul Sartre. Rather, it is a political and legal document designed by America’s founders to secure the unchanging God-given rights to life, liberty, and property which are deeply rooted in the 18th century soil of the nation. Justice Kennedy showed no regard for these fixed principles, opting for an evolutionary approach to law — asserting that the existential definition of marriage changes with changing times.

However, the very purpose of our Constitution is, as Chief Justice John Marshall wrote in Marbury v. Madison, to make “permanent” those principles that the people desired. And, so that those principles would not be “mistaken or forgotten,” the people committed them to writing.

Thus, Marshall wrote “it is the province and duty for the courts to say what the law is,” not to make it up as we go along.

As today’s dissenting Chief Justice observed, “[t]hose who founded our country would not recognize the majority’s conception of the judicial role”:

“They after all risked their lives and fortunes for the precious right to govern themselves. They would have never imagined yielding that right on a social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system of empowering judges to override policy judgments so long as they do so after ‘a quite extensive discussion.’”

And, as the capstone of his dissent, the Chief Justice concluded: “the Constitution. It had nothing to do with it.” In those nine simple words, Chief Justice Roberts explained why this decision of the Court is not law. If the Constitution had nothing to do with it, the Court had no jurisdiction to issue it. It is, therefore, a nullity.

In the words of Justice Felix Frankfurter, a brilliant jurist who understood the dangers of hubris on the highest court in the land — may Obergefell v. Hodges prove to be a “derelict on the waters of the law.” And it will be — but only if the American people rise up and resist this gross perversion of the rule of law.

Approximately one month ago, the U.S. Justice Foundation began to organize the writing and publication of a series of articles in a series entitled “Building the Resistance to Same-Sex Marriage.” This project was undertaken in the hope that the Supreme Court would not recklessly decide the same-sex marriage case, but nonetheless, we prepared for the worst, and sadly, the Supreme Court has disappointed us again. Hopefully over the coming weeks and months, state and local government officials and the people at large will be able to draw from these articles justification and techniques to resist the Supreme Court’s lawless decision.

In Article II, we established that the Fourteenth Amendment in no way addressed the issue of same-sex marriage. In Article III, Robert Reilly explained how poorly these cases have been litigated by government lawyers supposedly defending same-sex marriage. In Article IV, Pastor James Taylor explained the biblical and moral basis for traditional marriage. In Article V, Houston attorney J. Mark Brewer anticipated how courts will manipulate today’s rulings to penalize those in business and the professions who embrace biblical marriage. In Article VI, former Congressman John Hostettler explained that if a soldier has the duty to disobey an unlawful order, how could a state official not have that same duty? In Article VII, former federal magistrate Joe Miller discussed why it would be a violation of federal law and judicial ethics for Justices Ginsburg and Kagan to participate in the decision, yet both did so today.

In Article VIII, Pastor Matthew Trewhella provided a historical context for Christian resistance by lower government officials to illegal actions by higher government officials, known as “The Doctrine of the Lesser Magistrate.” In Article IX, we discussed the apparent efforts of the Supreme Court to bury the motion for recusal filed by the Foundation for Moral Law so that Justices Ginsburg and Kagan could more easily disregard their duty. In Article X, constitutional attorney Edwin Vieira explained how decisions like today’s decision violate the Constitution’s “good behavior” standard, leaving them susceptible to removal. In Article XI, former U.S. attorney Tom Ashcraft laid out the process by which Congress can limit the jurisdiction of federal courts, using the power Congress was expressly given in the U.S. Constitution. In Article XII, Senior Virginia Delegate Robert G. Marshall discussed how Congress could immediately use the Appropriations Power to prevent implementation of an unlawful decision such as that issued today. And lastly, in Article XIII, former Oklahoma Representative Charles Key described the responsibility and duty of every citizen, when serving on a jury, to decide both the facts and the law in every case, known as jury nullification.

This series of articles has demonstrated that a Supreme Court decision mandating same-sex marriage would be illegitimate. As Blackstone said, it would not just be bad law; it would be no law at all. That decision has now transpired. These articles also demonstrate that the American people and our elected officials have many ways to resist the unconstitutional decision of the Court. The question now is, will our political leaders abandon the true Constitution to embrace the decision of the Court?

In the coming days we will continue to be releasing articles further discussing the justification for and techniques that can be used by Congress, state officials, and the American people to resist today’s unlawful decision. We urge supporters of traditional marriage to view today’s loss as a setback, but by no means a final decision of anything. The battle continues.


Herbert W. Titus taught Constitutional Law for 26 years, and concluded his academic career as the Founding Dean of Regent Law School. William J. Olson served in three positions in the Reagan Administration. Together they have filed over 80 briefs in the U.S. Supreme Court, and dozens more in lower courts, addressing important public policy issues. They now practice law together at William J. Olson, P.C. They can be reached at [email protected] or twitter.com/Olsonlaw.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

  • Kendrix

    This is not the UNITED STATES that I remember or grew up in. Once again MAN.. has decided what God himself created MARRIAGE between a MAN & WOMAN. This is nothing but OPEN SIN.. for these QUEERS. Don’t be deceived God is aware of things in America and the world. His WRATH is coming to AMERICA. Look out for several disasters coming to AMERICA, not a scare.. JUST God Judging this country. I LOVE MY WIFE.. Thank You God.

    • Russ

      my feelings exactly. Thank You!

    • nicole

      It’s not just open sin which is worthy of death for those who commit lawless deeds, but also those who take pleasure in them that do them (Romans 1:32). We are sure that the judgment of God is according to truth against them which commit such things, who will render to every man according to his deeds: indignation, wrath, tribulation, and anguish upon those who do not obey the truth, but obey unrighteousness (Romans 2). They will be without excuse.

    • GeneP54

      I’m as outraged as anyone over this ruling, but we need to remember as Christians, that many of the people who support this are young people who are ignorant…of the Constitution, of morals, and of God. Calling them names, being judgemental isn’t the way to show them the Love of God and how their lives can be turned around.
      I don’t believe this country has left God. I think our GOVERNMENT has left God, but I surely hope that He knows the difference!

  • dennykray

    Governor Bentley of Alabama should be aware of the fact that the issue of gay marriage is not an issue that is pursuant of the constitution. Therefore, the state of Alabama has every right to nullify this ruling. Our constitution is based on the natural law God. The present leadership of this country would have us believe otherwise.
    To the people of this country-how long do you think that God will continue to allow us to make a mockery of His laws? Do you not understand the signs of the times?

  • “O Yahweh, … in wrath remember mercy.” (Habakkuk 3:2)

    Perhaps now Christians will wake up to the fact that we’ve been had and cease promoting the document responsible for this decision: The biblically seditious Constitution.

    Consider the following sampling of reasons the Constitution stands as the genesis for today’s horrific decision:

    1) Unlike their 17th-century Christian Colonial predecessors, the 18th-century founders failed to expressly establish government and society upon Yahweh’s unchanging morality as reflected in His commandments, statutes, and judgments, including those regarding the perversion of homosexuality.

    2) Article 3’s usurpation of the biblical magistrate appellate system for the Constitution’s unbiblical litigant appellate system without which this issue would have never been before the Supreme Court to decide, in the first place.

    3) Article 6’s Christian test ban by which biblical qualifications were all but eliminated and without which it was inevitable that America would end up with today’s Supreme Court Justices who are responsible for today’s decision.

    For more, see online Chapter 3 “The Preamble: WE THE PEOPLE vs. YAHWEH” of “Bible Law vs. the United States Constitution: The Christian Perspective.” Click on my name, then our website. Go to our Online Books page, click on the top entry, and scroll down to Chapter 3.

    Then Chapter 5 “Article 3: Judicial Usurpation.”

    Then Chapter 9 “Article 6: The Supreme Law of the Land.”

    Find out how much you REALLY know about the Constitution. Take our 10-question Constitution Survey in the right-hand sidebar and receive a free copy of a book that EXAMINES the Constitution by the Bible.

  • Doris Pierce

    People keep bringing the Constitution into this subject. Are you forgetting that the Constitution guarantees us “the right to the pursuit of happiness”? That means EVERYONE, not just a select few. And it is not up to us to judge ANYone…THAT is up to God. So, until God decides to visit Judgement Day upon us we should all just live and let live. On another note…how many of you realize that you may be interacting with someone LGBT on a daily basis? It could be your dr., a bank teller, the cashier at the store you shop at, your mechanic, mailman, your child’s teacher, someone in your Church, etc. Not all LGBT make it widely known. What are you gonna do…question every single person you interact with? People need to accept the fact that LGBT are among us and are not going anywhere. You don’t like their lifestyle? That’s fine, that’s your right. They are not pushing you into living their lifestyle so why should you push your lifestyle on them. Like I said, live and let live and let God handle things His Own Way.

    • Jim Funnell

      #1. Your first statement shows how much thought and logic you used in your liberal “feel good” post. “The right to the pursuit of happiness” appears in the Declaration of Independence, not in The Constitution.
      #2. You are right. Unfortunately, “Not all LGBT make it widely known”. In fact, many of them are bi-sexual, and the rampant incidence of STD’s in the homosexual community makes it very dangerous for “normal” sexually oriented individuals to have relations with them. The public would be well served if the LGBT’s were required to publicly declare their sexuality.
      #3. Please tell me why many individuals and privately owned businesses are financially and personally destroyed by LGBT lawsuits if “They are not pushing you into their lifestyle” ?

    • nicole

      If EVERYONE is guaranteed the right to pursue whatever it is that makes them happy, as you claim to be true, then how can we pass any laws forbidding or requiring any behavior? Maybe it doesn’t make me happy anymore to provide for my own children, is it then okay to abandon them? Maybe it makes someone happy to rape others, should there be no laws which prohibit their happiness? If we’re not supposed to judge any behaviors right or wrong, how can we have any laws at all? I interact with drunkards, adulterers, fornicators, theives, and liars all the time. It doesn’t mean the government has the right to legally impose I celebrate their actions. Why is it okay for YOU to judge others wrong for supposedly pushing their lifestyle? Shouldn’t YOU, “live and live and let live and let God handle things His Own Way?”

      • Soph Kitty

        Well said Nicole!

    • Soph Kitty

      I think you are confusing the Constitution and the Declarations of Independence Doris.

    • CSN

      Excuse me? LGBT are pushing themselves in our faces every single day, and this Supremely Illegitimate Law is one of them. The Government has no right to interfere in any Churches decision with regard to “Marriage”, or the “Definition of Marriage”. It is within the Sacred Portals of the Church that we are to have our Freedom to worship according to the dictates of our own consciences. The Government is pushing an Agenda on all Churches throughout the USA, and Damn that way of thinking which has no place in the American Way, and is Totalitarianism/Fascism, and not Freedom. The SCOTUS just made a Law which is over reaching and merely demanding we all succumb to “License” rather than “Liberty”.

    • mikecnj

      @Doris is conflating John Locke and Thos. Jefferson

  • CSN

    Of course the Framers of the Constitution didn’t believe in same sex marriage….it was illegal to promote such or for anyone to live openly in that kind of a relationship. People were jailed for Sodomy.

  • CSN

    How many people realize that the Government has now decided to no longer make it mandatory for people to be free of Venereal Diseases, if they are to get a “Marriage” License! In other words, don’t offend the LGBT by denying them a License because they have AIDS, HIV, etc.

  • Marriage is a contract. Government should not be discriminating about who can enter into contracts.

    As far as government is concerned all marriage should be considered civil contracts, leave marriage to the private sector.

  • mikecnj

    Obergefell : So, what do we intend to DO about it ?

  • “. . . . And just who are these lawyers? Justice Scalia reminds us that they are all educated at either Harvard or Yale, . . . .” Apparently Harvard and Yale are NOT ‘well educating’ their students. The HARVARD LAW REVIEW said that anyone born in the United States is a “natural born” citizen, which is NOT TRUE, because apparently they have never read the Federalist Papers, nor are they the least bit familiar with the Minor
    v. Happersett, 88 U.S. 162, 167-68 (1875) or U.S. v. Wong Kim Ark. , 169.

    With presidential eligibility under Article II, for those born after the adoption of the Constitution, the American people need to know the definition of a natural born citizen as compared to merely being a citizen, because there is a difference. People need to understand that all natural born citizens are citizens, but NOT all citizens are natural born citizens.

    Either the Law Professors are ignorant of what they are teaching or they are deliberately misleading their students. Either way the results are the same, a CORRUPT JUDICIAL SYSTEM.

    • John Liberty

      Just as the SCOTUS has redefined our “creator given rights”, and the Congress, by its refusal to stand up to this regime, has allowed Obama to re-define our unalienable rights … into inalienable rights.

      The Constitution says we have “Unalienable rights”, which mean … to be incapable of being alienated, that is, sold or transferred …. period !!! Government thusly CANNOT transfer our rights to themselves by way of a federal agency regulation. You can not surrender, sell or transfer “Unalienable rights”, they are a gift from the “Creator” to the individual and can not under any circumstances be surrendered or taken. All individual’s have “Unalienable rights” and our founders KNEW that. This administration is not a government of “We the people”, it is a government of a King and Emperor Obama, flowing with the rhetoric of a community organizing “lip service”. Obama doesn’t care about limits to his power guaranteed by the Constitution for he sees that documents as a document of “negative liberties” … that of what the government can do FOR YOU, not limit a socialist’s power.

      We have a neutered Republican party who hasn’t got the guts to stand up to him with the Constitution on their side, all they chose to do is to investigate and talk, not impeach as the evidence is all there for them to act.

      We will NOT be “duped” by the ignorance of what evil lurks in this White House, he is the slithering snake from … “The Tree Of Knowledge Of Good and Evil”. We are in a War of the Spiritual kind for the soul of America, and God is on our side, but darkness remains to implement “chaos” in opposition to Him.
      WAKE UP people … a coercive godless Tyranny is here … and the freedom OF religion battle is upon us, sprung by an Islamic appeaser who acts as if Christianity is the problem!!

    • Dave B.

      What a hoot. None of the references you use establish a definition of “natural born citizen” that excludes ANY native born persons other than by the ancient exceptions of the children of diplomats or foreign occupying armies.

      Of course “NOT all citizens are natural born citizens.” NATURALIZED citizens aren’t natural born citizens.

  • Doris Pierce

    Yes, I got the Constitution and the Declaration of Independence mixed up. Thank you to those who set me straight. The point is…we are guaranteed the “right to pursue happiness”. And I still don’t see how we can say that certain people are not allowed that right. What if heterosexuals were the “problem”? What if suddenly it was wrong for heteros to be together as couples? Would you fight for your rights? I think you would! Everyone has the right to be happy. It is not up to us to judge, we are not God. Only He can judge anyone.

    • Jim Funnell

      Good grief Doris! The Declaration of Independence did not “guarantee us the right to pursue happiness”! The Declaration did not guarantee us anything! The Declaration only stated that the Creator endowed us with this Right. The Creator also stated that homosexuality is a sin! You can not have it both ways, unless you are, of course, an atheist or a sodomite. For crying out loud, even Islam considers it a sin punishable by death. Who is going to urn this around and make heterosexuality the sin? Certainly not God! Only the atheist or the sodomite would attempt such a ridiculous event.

  • carlosperdue

    Nauseates me that Chief “Justice” Roberts, aka “John The Activist”, is crying the crocodile’s hypocrite tears the very day after his second subversive, dishonorable decision for Obamacare.

    “Justice” Kennedy – a Reagan RINO – covered for Robertominor on the O-care vote (John the Activist needed the cover; didn’t want to reverse himself). The next day, since the fix was in for gay marriage too, Robertominor gets to pretend to be honorable and conservative, and Keenedy’s opposite vote covered him on that too.

    That shuffle game helps Karl Rove and Jeb Bush avoid the obvious fallout: Never elect RINOs, never appoint or confirm RINOs. They can’t afford having Republican voters wise up and laugh at them when they run the time-honored scam on us:

    “If you don’t vote for the ‘Republican’, we will lose the Supreme Court.”

  • TransplantedTexan

    The Supreme Court has long abandoned its role as one of the Constitutional “checks and balances” to protect the citizens of the United States from the tyranny of the government. This is simply one more example of that fact

  • Lloyd Revalee

    I wholly agree. Personally, I don’t care what these strange, odd, mentally unbalanced people do, as long as they do not bother me. I have the right to make my own decisions, but I have no right to deny others to make theirs. But that has little to do with the latest Supreme Court decision.

    Congress, the President, and members of the Supreme Court, all know fully well that a Supreme Court decision is not a law. Only Congress has the right to make laws, and in this case, if they decide to do so, they will have to amend OUR CONSTITUTION. IF THEY DO THAT, SEVENTY FIVE PERCENT OF THE AMERICAN PEOPLE WLL HAVE TO APPROVE THE AMENDMENT BEFORE IT BECOMES CONSTITUTIONAL LAW.

    The Constitution is the Supreme Law of TheLand. It does not give Congress the power to control marriages; therefore, that right belongs to the individual States, and to the people. The same is true for the Affordable Care Act, for the Constitution does not give the Congress power to force people to purchase health Insurance..

    There is something wrong with our country when Congress, the President, the Supreme Court, and the media, keeps trying to tell us that a supreme Court decision automatically becomes the law of the land, when they have to know that it is not Constitutional.

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