On August 1, 1776, just a few weeks after signing the Declaration of Independence, Sam Adams spoke before a large audience at the State House in Philadelphia beseeching them to fight for their independence. During the speech, Adams singled out religious liberty as the consummate freedom – of all fundamental rights – they’d be fighting for in this revolution. He warned the public that “our contest is not only whether we ourselves shall be free, but whether there shall be left to mankind an asylum on earth for civil and religious liberty.”

Two hundred and thirty-nine years later, we are on the precipice of losing that asylum to a pagan inquisition our Founders could never have recognized. Now, county clerks are being forced to issue marriage licenses to relationships that have never been conceived as a marriage until just 15 years ago – all by a few unelected judges who have no jurisdiction over the definition of marriage. Kim Davis, the Clerk of Rowan County Kentucky is now taking a stand and is refusing to be sent to the back of the bus as a second class citizen in a country founded upon Judeo-Christian values. She has refused to issue licenses to redefine marriages because, as clerk of the county, those documents will always contain her name – even if they are directly issued by a deputy.

Kim Davis is taking a stand and saying no more, much like Rosa Parks did against unjust anti-liberty Jim Crow laws.

I know what some of you are thinking. “But Daniel, it’s one thing to refuse to violate one’s religious conscious when forced to perform a service with private property, such as the case of the Oregon baker or Gifford family farm in New York. Kim Davis, on the other hand, is a government official and is now bound by the Supreme Court’s decision, as absurd as that decision might be.”

Here’s the problem with that line of thought. Until now, we’ve dutifully tolerated 50 years of blatantly unconstitutional judicial tyranny, obsequiously repeating the false mantra that “the Supreme Court is the law of the land,” even in the most egregious cases. But if we don’t draw a line in the sand at some point, we will lose our country, liberty, and sovereignty altogether. Remember, these are the same judges who believe illegal aliens have a right to violate our sovereignty and assert Second Amendment rights. Is that the law of the land too?

For quite some time, there have been four justices on the Supreme Court and a majority of lower court judges who not only reject our Constitution as it was originally drafted, they believe it is a living and breathing document, given over to the unelected legal profession to interpret and promulgate laws as needed. This view was best articulated by Justice Thurgood Marshall in 1987. Speaking at a bicentennial celebration of the Constitution, Marshal brazenly rejected the notion of celebrating the Constitution as the Framers conceived it, along with their “outdated notions of liberty, justice and equality.”

This is the ultimate example of despotism because there is no recourse of the people to protect against the insidious political whims of unelected judges at any given moment. It’s one thing for elected politicians to behave badly. They can always be defeated in an election. But to have this power vested in the hands of judges is unsustainable. Sure, the Constitution has flaws, as only a document from God can be perfect. But there is a process for changing that. To replace the Constitution with the unwritten subjective social justice values of a legal profession – without a formal amendment process – is lunacy and leads to indefinite and unaccountable oligarchy.

Irrespective of one’s views on homosexuality, it was clear to anyone who can read that the Constitution was silent on the issue of marriage. That’s when Anthony Kennedy formally joined the judicial tyranny wing of the court, thereby securing a majority of justices who not only eschew the Constitution as it was written, but believe the existing Constitution is comprised of their personal values at any given time. In 23 words, Kennedy openly and unabashedly nullified the Constitution and made himself and his colleagues a supreme power, “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

Kim Davis rightfully believes that the “we” in we the people means the people through their elected state or federal representatives, not unelected judges.

One might ask: why doesn’t she just resign? After all, this is not her personal property; it’s a government job. And if Kim Davis is being asked to resign, shouldn’t Obama have to resign his position if he has conscious problems with regard to enforcing endless immigration laws duly passed by Congress?

Martin Luther King famously said, “I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.” He was referring to laws duly passed by elected bodies of government, such as state legislatures. How much more so would his principle apply against unelected oligarchs who have flipped the power of the Judiciary on its head.

Kim Davis worked in the Clerk’s office for 27 years, predating even the human concept of a homosexual marriage. In 2004, 75% of the state’s voters agreed to preemptively protect against the assault on marriage by defining it as a union between a man and a woman. One can be the most pro-homosexual “rights” activist in the world, but were he to uphold our legal framework, he’d have to concede that the federal constitution is silent on marriage and it has always been a state institution. Marriage as it was always understood is the law of the land in the state of Kentucky, so why should Kim Davis yield to the naked and illegal political ambitions of the judicial oligarchs on a federal level? (For more from the author of “Kim Davis as the Modern Day Rosa Parks” please click HERE)

Watch a recent interview with the author below:

Follow Joe Miller on Twitter HERE and Facebook HERE.

The Obergefell decision was perhaps the most fraudulent Supreme Court decision in US history. The logic was non-existent, the arguments were phony, and the decision itself was a totally political one that, as Chief Justice John Roberts wrote, “has no basis in the constitution or this court’s precedents.” And the ramifications of this decision are disturbing, with significant impact on children, on American culture, on the institution of marriage and on the First Amendment rights of Americans — in particular churches, Christian-owned business, and religious schools. Justice Samuel Alito warned that the decision will be used to oppress the faithful “by those who are determined to stamp out every vestige of dissent.”

First, the issue of same-sex marriage should never have been before the Supreme Court. This is an issue our founding fathers would have insisted be decided by the democratic process. The Supreme Court can’t “interpret” something that is not addressed in the Constitution. Even more significantly, because marriage was NOT originated by human law, civil government has no right to redefine it.

Second, for same sex marriage to be ruled “constitutional”, then, obviously, those who wrote the constitution would have to have been in favor of it and would have indicated so in the Constitution. Neither is true. And the views of our founding fathers on this issue are the opposite of what the five elite lawyers in black robes claimed they were.

Indeed, homosexuality was looked upon by the founding generation as a deviant sexual behavior, which, by the way, continues to be documented by reams of social science research. The only time homosexuality is mentioned anywhere in the law by America’s founding generation is at the state and local levels; and then it was in defining the crime of “sodomy,” and always with steep penalties attached.

Third, the idea that the Supreme Court trumps the other two branches of our government is a bizarre notion with little historical evidence to back it up. The founders gave it the power to offer interpretations in cases brought before it, but never gave it the power to create policy. Many of our founding fathers – Washington, Madison, Jefferson, etc – mocked this idea as one that would destroy the democratic nature of our government. It wasn’t until the Marbury v. Madison decision and some subsequent decisions that the Supreme Court essentially voted to give itself more power. But Congress never ceded them this power; and even today, there exists nothing in our founding documents that prevents the States from simply refusing to obey a Supreme Court ruling. Nullification, as it is called, by a state was common in the past and should once again be used by the states to counter an out-of-control Supreme Court.

Fourth, Anthony Kennedy claimed in the majority opinion that homosexuality was something one is born with – “immutable” he said, a completely false notion. Genetic researchers have never discovered a “gay gene”; and the Human Genome Project, involving 150 of the world’s top geneticists, was not able to find a “gay gene.” None of the professional organizations like the American Psychological Association or even the pro-homosexual Kinsey Institute will claim that homosexuality is genetic. Kennedy made up this phony claim because if homosexuality is not genetic, and thus only a behavior, it is too flimsy of a foundation upon to redefine the ancient institution of marriage. What’s strange is that even the proponents of this case did not make the claim that homosexuals are born that way. Where is Kennedy getting this info? (Read more from “The True Reason Gay Marriage Was Legalized, and What It Really Means for the Future” HERE)

Follow Joe Miller on Twitter HERE and Facebook HERE.

To the Attorneys General, Governors, and Legislatures of Michigan, Ohio, Tennessee, and Kentucky:

On June 26, 2015, the U.S. Supreme Court issued its decision in the Obergefell case, purporting to overturn all state constitutional amendments and laws in your four states defining marriage as a covenant union between two people of the opposite sex. Since then, numerous efforts have been made, urging each state to file a Petition for Rehearing of that decision, as permitted in the Rules of the Supreme Court before the deadline of Tuesday, July 21, 2015. Apparently, to date, every such effort has been rebuffed. In response, various of your offices have stated that such a Petition would be: (i) unlikely to succeed; (ii) a waste of time: and (iii) a waste of money.

We know of two draft Petitions for Rehearing that have been prepared by outside lawyers. One of these was prepared by the U.S. Justice Foundation and has been circulated over the last week. The U.S. Justice Foundation’s Draft Petition for Rehearing can be found at www.usjf.net.

Here is why a Petition for Rehearing must be filed. Since the Supreme Court’s decision, it has been assumed that the “rule of law” requires not just your four states, but every State, to recognize the “fundamental right” of same sex couples to marry. However, this assumption overlooks two critical factors: (i) whether some of the Justices who participated in issuing that decision did so unlawfully; and (ii) the nature of the express limitations set out by Justice Kennedy in that decision. Because of these two critical factors, we urge all of you as Attorneys General, or at least one of you, file a Petition for Rehearing of this decision. Additionally, we urge all elected officials in those four states to impress on you the need to file a Petition for Rehearing. Although the Court’s decision purports to apply to all states — including the states that did not have an opportunity to present their arguments to the Court — only your four states can seek rehearing.

First, the Issue of “Recusal” by Justices Ginsburg and Kagan.

The participation by Justices Ginsburg and Kagan in the Obergefell decision violated federal judicial ethics, and a federal statute. These Justices were under a duty to recuse and not participate in that decision. Without their two votes in favor of same sex marriage, the traditional marriage laws in your states would have been upheld on a vote of four to three, with two justices not participation. Until the decision was issued, the American people had no way to know if these two justices were going to recuse. Now that the decision is issued, we know that they did participate — unethically and unlawfully.

There is no regular means to enforce the law against the U.S. Supreme Court Justices. The matter of recusal has generally been considered a personal matter, to be evaluated by each Justice for himself or herself. The other Justices do not try to enforce the law against their colleagues. Neither the President nor the Attorney General of the United States seek to enforce the law of recusal against the High Court. The Congress has not taken action to ensure that its laws are followed by the Supreme Court. In other words, each Justice of the U.S. Supreme Court is a law unto himself or herself.

Two Motions for Recusal was filed with the U.S. Supreme Court, but never ruled upon. Indeed, neither was even posted to the Supreme Court docket sheets until the Court was embarrassed for failure to post them. Even then, only one of the motions shows on those docket sheets, mis-labeled a “request” rather than a “motion.”

Properly understood, without Justices Ginsburg and Kagan participating, the decision of the U.S. Supreme Court in Obergefell actually was in favor of traditional marriage, by a vote of 4-3 with two judges not participating. Even if only Justice Ginsburg was disqualified, the vote would have been 4-4, and the decision of the U.S. Court of Appeals for the Sixth Circuit upholding traditional marriage would be left standing.

A Petition for Rehearing must be filed challenging the legality of the votes purportedly cast against the constitution and laws of your state by Justices Ginsburg and Kagan.

Second, the Issue of the “No Risk” Limitations in the Decision.

A careful reading of the holding of the Kennedy opinion reveals that the right to marry recognized by the Supreme Court is not at all what has been assumed.

At the end of a lengthy review of the Court’s due process and equal protection precedents, in which he concluded that same-sex couples could no longer be denied the liberty to marry, the “fundamental right to marry,” Justice Kennedy pronounced that “the State laws challenged [by the same-sex couple] Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”

In the very next section of his opinion, Justice Kennedy addressed the States’ counterclaim that the Court should withhold its decision to allow more “democratic discourse” before rendering its decision. On the basis of the record, including the perceived urgency of the petitioning couples’ needs, Justice Kennedy declined to “stay [the court’s] hand,” noting specifically that, while the four State respondents, had claimed “that allowing same-sex marriage will cause the harmful outcomes they describe,” the States had failed to “show a foundation for that conclusion.” In anticipation, however, that if such a foundation could be laid in a future case, Justice Kennedy was prompted to “observe [that these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”

In light of the Justice Kennedy’s own words, there is no doubt that the Court acknowledged that the absence of any “risk of harm” to either the two persons in the marriage or to third parties is an important predicate for its decision. Indeed, the Court’s own due process and equal protection jurisprudence allows for discriminatory treatment of enjoyment even of a fundamental right based upon whether the right would be subjected to strict scrutiny, to determine if there might be a legitimate overriding governmental interest to deny access to that right. Significantly, the Court did not engage in any such inquiry in the four cases before it because of the lack of a foundation showing “harmful outcomes” should same-sex marriage be permitted. Thus, Justice Kennedy limited the Court’s holding to those cases that involve no risk of harm to the married couple or to third parties. To that end, the Petition for Rehearing that we have drafted contains an Appendix documenting many of the “harmful outcomes” that Justice Kennedy stated were never considered by the Court in Obergefell.

We urge you to do your duty according to your oaths to the Constitutions of your State and of the United States to defend your state constitutions and state laws. The People of your State deserve no less.

________________

If you believe a Petition for Rehearing should be filed, you can contact the following state Attorneys General:

Michigan Attorney General Bill Schuete

(517) 373-1110

Ohio Attorney General Mike DeWine

(800) 282-0515

Tennessee Attorney General Herbert H. Slatery III

(615) 741-3491

Kentucky Attorney General Jack Conway

(502) 696-5300

________________

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.