At the close of the Constitutional Convention in Philadelphia in 1787, a woman allegedly approached Benjamin Franklin and asked, “Well, Doctor, what have we got – a republic or a monarchy?” The sage 81-year-old Franklin replied, “A republic, if you can keep it.”

Wordsmith, entrepreneur, inventor, diplomat, and polymath, Franklin understood that a piece of paper, however well conceived and drafted, would never be sufficient to secure ordered liberty. Over the long haul, the prize of a republic of free citizens would hinge on constant effort.

The new U.S. Constitution was a grand legal document, but its function would be to provide the tools for generations of human exertion. Without continuing the sacrifices made by Franklin and the founders into the future, the American experiment in liberty, which captured the imagination of the world, would not endure.

Can we today, utilizing the tools of the Constitution, keep alive the self-governing federal republic we have received? With the U.S. Supreme Court entertaining, as if a serious legal issue, whether ordinary state laws on marriage were outlawed 147 years ago when the post-Civil War Fourteenth Amendment was adopted, now would be a good time to reexamine and deploy such tools. An obvious starting point is the control of federal court jurisdiction which the Constitution entrusts to Congress. (For a discussion of several other constitutional means to check judicial usurpation, see Edwin Vieira, How to Dethrone the Imperial Judiciary (2004).)

No court can decide any case without jurisdiction, the authority to render a binding judgment in a disputed matter. Unlike most state courts which possess general jurisdiction, federal courts have only limited jurisdiction to hear cases as authorized by the U.S. Constitution and laws thereunder. They are courts of limited jurisdiction.

Article III of the Constitution provides in part:

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— . . . —between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [Emphasis added.]

The above language was the result of multiple compromises by the Constitutional Convention. Chief among them was the so-called Madisonian Compromise. Some delegates opposed creation of a federal court system below the U.S. Supreme Court, leaving state courts to decide federal issues first, with possible appeal to the Supreme Court. James Madison and others thought creation of a lower federal court system was best, and persuaded the Convention to defer the issue to later congressional decision.

Thus Congress was given authority over the existence of lower federal courts including details of their jurisdiction. Congress has used this power to alter lower court jurisdiction in a variety of ways. One of the most prominent was the Norris-LaGuardia Act of 1932 which restricted injunctions in labor disputes – a statute later upheld by the Supreme Court. (See “Congressional Authority over the Federal Courts,” Congressional Research Service (May 16, 2005).)

As for the U.S. Supreme Court, the Constitution, not Congress, sets its original jurisdiction, the matters initially filed in and heard by it. These cases are rare and comprise a fraction of the high court’s workload. The bulk of its deliberations are appeals from lower courts, its appellate jurisdiction. As to this jurisdiction, Congress is given a large hand: “[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (See Ralph A. Rossum, “Congress, the Constitution, and the Appellate Jurisdiction of the Supreme Court,” 24 Wm. & Mary L. Rev. 385 (1983).)

After arguing for the general soundness of the Constitution’s allocation of judicial power for the new federal system, Alexander Hamilton, in Federalist No. 80 (1788), explains the checking power entrusted to Congress over court jurisdiction against any “mischief” that might arise:

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. [Emphasis added.]

(In Federalist Nos. 79 and 81 Hamilton discussed the ultimate check provided Congress over the entire federal judiciary, the power to impeach and remove judges.)

In the modern era, various efforts have been made to use congressional control over court jurisdiction to check sweeping liberal decisions of the Supreme Court. The subjects addressed have included Court rulings which sanctioned large-scale busing as a remedy to public school segregation, banned traditional group prayer in public schools, and overturned longstanding state criminal laws restricting abortion. Other efforts to curb jurisdiction have involved religious liberty questions, recitation of the Pledge of Allegiance, display of the Ten Commandments, and state marriage laws reflecting the ancient understanding that the nature of marriage involves two parties of the opposite sex rather than a homosexual pair.

Recently some members of Congress have focused on the need to restrain federal judges from imposing their will over state marriage laws – to protect the ancient understanding that the nature of marriage involves two parties of the opposite sex rather than a homosexual pair. Congressman Steve King (R-IA) has led a handful of his colleagues in seeking such legislation in the current Congress. See Rep. King’s bill entitled “Restrain the Judges on Marriage Act of 2015,” H.R. 1968, 114th Congress, 1st Session (2015). Most Republican congressmen appear to be overly timid and have been unwilling to join this effort. Only 10 members have signed on as co-sponsors: Brian Babin (R-TX), Jeff Duncan (R-SC), Louie Gohmert (R-TX), Doug LaMalfa (R-CA), Thomas Massie (R-KY), Steven Palazzo (R-MS), Glenn Thompson (R-PA), Tim Walberg (R-MI), Ted Yoho (R-FL), and Walter Jones (R-NC). Are these the only Republican House members who have the courage of their convictions on marriage?

Sen. Ted Cruz (R-TX) introduced a companion bill to Mr. King’s bill in the Senate, S.1080, “Protect Marriage from the Courts Act of 2015.” He has zero co-sponsors at this point. Are there no other Republican Senators who support traditional marriage?

In the 1970s and 1980s, Sen. Jesse Helms (R-NC) had some success in the Senate with court limitation amendments on school prayer. But he too faced opposition from some Republican colleagues.

In April 1979, with a 58-member Democratic majority, Helms won approval of court limitation twice (with votes of 47 to 37 and 51 to 40), only to see the legislation die after parliamentary maneuvers and inaction in the Democratic House. In August 1982, when Republicans held 53-member majority in the Senate, Helms offered a similar court limitation amendment, which by a 47-53 vote survived a motion to table (or kill). Lacking 60 votes for cloture, though, the legislation did not clear the Senate. Helms tried again in September 1985. By then not only did he face liberal Democratic opponents, but key Republicans, including Senators John Danforth (R-MO), Pete Domenici (R-NM), Barry Goldwater (R-AZ), Orrin Hatch (R-UT), and Richard Lugar (R-IN), joined them to table the amendment by vote of 62 to 36.

Congressman John Hostettler (R-IN) led a winning effort in the House in 2004, when Republicans held a slim majority. His Marriage Protection Act removed all jurisdiction from lower federal courts and appellate jurisdiction of the Supreme Court over the Defense of Marriage Act. DOMA, enacted in 1996 by veto-proof majorities of both houses of Congress, allowed states not to recognize same-sex marriages from other states (sec. 2) and defined marriage for federal purposes as only between a man and a woman (sec. 3). After the House Judiciary Committee, chaired by Congressman Jim Sensenbrenner (R-WI), cleared Hostettler’s bill, it passed the full House in July 2004, on a vote of 233 to 194. Despite Republican control, the Senate failed to take action. The bill had been referred to the Senate Judiciary Committee, chaired by Sen. Orrin Hatch, who had earlier opposed the Helms legislation limiting court jurisdiction over school prayer. If Hostettler’s legislation had been enacted in 2004, the case of United States v. Windsor, 133 Sup. Ct. 2675 (2013), striking down sec. 3 of DOMA as unconstitutional by 5-to-4 vote, would likely never have been decided.

In Federalist No. 78 (1788) Alexander Hamilton reckoned the judiciary the “least dangerous” and “weakest” branch of the federal government. Unlike the executive or legislative branches, the judiciary, he noted, lacked the sword and the purse. He thought that while “individual oppression” may proceed from courts, danger to the “general liberty of the people” exceeded the judicial power.

Brilliant though he was, Hamilton failed to see what might happen when most of the checks and balances applicable to the judiciary under the Constitution were allowed to lie dormant for half a century and more. He overlooked the dangers that an extra-constitutional ethos might grow up, encouraged by the Court’s own extravagant jurisprudence, holding that the constitutional text and the Court’s interpretations are functionally equivalent, and thus irreformable except by the Court itself.

Moreover, it is certain that the original and later constitutional framers never envisioned Supreme Court justices growing so arrogant as to engage in wholesale usurpations against customary state legislative powers. They surely never imagined that federal courts would turn the killing of an unborn son or daughter into a constitutionally protected right. But see Roe v. Wade, 410 U.S. 113 (1973). The framers did not dream that such courts would transform what was “the crime against nature,” homosexual sodomy, into protected behavior. But see Lawrence v. Texas, 539 U.S. 558 (2003). And nothing the framers included in the Constitution contemplates a right for the oxymoronic concept of same-sex marriage, yet lower courts have forced this unnatural relationship upon the states and upended millennia of civilizing law.

Despite what they may not have foreseen, Ben Franklin and other constitutional drafters did leave us the tools of self-government, more than ample to stop judicial hubris and other legal chicanery. Thus we have the means to preserve our republic and its historic values. Do we have the will?

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Thomas J. Ashcraft is a lawyer in Charlotte, North Carolina. He served on the legislative staff of U.S. Senator Jesse Helms in the 1980s and as U.S. Attorney for the Western District of North Carolina, 1987-93. Email him at [email protected].

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.

Not only will we soon know how the U.S. Supreme Court decides the issue of same-sex marriage in the Obergefell case — we will also know if the Court will follow federal law and its own judicial ethics rules in reaching that decision.

On June 17, 2015, former U.S. Magistrate Judge Joe Miller wrote and published an article calling for Justices Ruth Bader Ginsburg and Elena Kagan to recuse from participating in the consolidated same-sex marriage cases now pending before the U.S. Supreme Court on the ground of bias. In support, Miller noted that both justices had officiated in the marriage ceremonies of same-sex couples, and that Justice Ginsburg had gone so far as to strongly suggest in public that the time for same-sex marriage had arrived.

In the course of his article, Miller also reported that the Foundation for Moral Law, which had submitted a friend-of-the-court brief in favor of traditional marriage, had also submitted a motion in support of Justices Ginsburg’s and Kagan’s recusals. Importantly, Miller also reported that not only had the Court not ruled on the Foundation’s motion, but that the motion had not even been posted on the Supreme Court docket. While a delay in posting can occur for a number of reasons, none applied here. Did someone at the High Court not want to acknowledge that such a motion had been filed?

Now we may have some indication that the U.S. Supreme Court uses Google Alerts, because shortly after the Miller article was published, on either June 17 or 18, 2015, the Foundation’s recusal motion suddenly appeared on the docket of the U.S. Supreme Court. Under a date of May 21, 2015, the entry read: “Request for recusal received from amicus curiae Foundation for Moral Law.” The new entry raises new questions.

First, the missing motion. The Foundation’s first motion to recuse consisting of eight pages was submitted on April 27, 2015 (and date and time stamped on April 27, 2015, at 11:47 a.m.) — a good three weeks before the Supreme Court claims that it was “received” on May 21, 2015. The Foundation for Moral Law later filed a second motion to recuse consisting of four pages on May 21 (date and time stamped on May 21, 2015, at 11:28 a.m.). The second motion was filed after Justice Ginsburg performed another same-sex wedding, and was to the effect of: “there, you did it again.” The second motion refers back to the first motion. Why is there only one entry on the Court’s docket sheets? What happened to the original motion?

Second, the name. The Foundation document is entitled a “Motion.” Why is it entitled on the docket as a “Request”?

Third, the action. According to the Court rules, a “Motion” is “filed” with the Court. Why is the action taken by the Court described only as “received” and not “filed”?

These points may appear to be minor – words that only lawyers would quibble over. But in reality, they suggest that the High Court, for an inordinate time, has ignored the recusal motion. While the Court has finally acknowledged that some recusal filing was made, it certainly gives no assurance that any ruling on the motion will be forthcoming before the Court decides the same-sex marriage case.

Federal law requires judges and justices to recuse from any case in which their impartiality “may reasonably be questioned….” 28 U.S.C. section 455. Moreover, Canon 3A(6) of the Code of Conduct for United States Judges states: “A judge should not make public comment on the merits of a matter pending or impending in any court….” However, as this case is demonstrating, the Supreme Court appears to believe it is under no obligation to abide by that federal law and judicial Ethical rule.

First, while Justices Ginsburg and Kagan have an ethical duty to avoid commenting on cases, and a statutory duty to recuse when their impartiality “may reasonably be questioned,” as a matter of practice, each justice is the sole judge of her own case. While a decision of a lower federal court judge may be appealed to a higher authority, each U.S. Supreme Court Justice has the final word on his own fitness to serve. These two Justices should have addressed the question publically prior to participating in oral argument (issue one and issue two) on April 28, 2015, but they did not. Since these two Justices ignored problems caused by their conduct, the remainder of the Court should have stepped in and addressed the issue for them, but the other seven Justices have remained silent.

Second, even now, the Foundation for Moral Law’s motion to recuse is not officially recognized by the High Court as being a motion, the docket sheets characterizing the motion as a mere “request.” Having no obligation to rule on a mere “request” — especially one that it represents was not even “filed” — Justices Ginsburg and Kagan would seem to be free to disregard the matter completely without obligation to give any reasons whatsoever why they could be impartial.

The effort to have Justices Ginsburg and Kagan recuse is not just a lonely one of former federal Magistrate Judge Joe Miller from Alaska and the Foundation for Moral Law in Alabama. It is also supported by the American Family Association, Vision America Action, the National Organization for Marriage, the U.S. Justice Foundation and — in a story largely ignored by the mainstream media — supported by an unanimous vote of the Louisiana House of Representatives, as well as Louisiana Governor Bobby Jindal.

Should Justices Ginsburg and Kagan continue to disregard their apparent conflict of interest, the long-standing legal maxim that no one should be a judge in his own case again would be upended. And if the motion is then disregarded by the Court as a whole, to which it was addressed secondarily, the opinion of the two justices on their own fitness to participate in the vote would stand. In either event, for many people, continued inaction on these recusal motions will not only erode public confidence in the U.S. Supreme Court, but would call into question the constitutional legitimacy of its forthcoming same-sex marriage decision.

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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. In the recent same-sex marriage cases, they filed an amicus curiae brief in the DeBoer case in the Sixth Circuit, and another amicus brief in the Obergefell case in the U.S. Supreme Court. 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” which appears on the USJF website. To support this important work, please make contributions the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose

The Federal Government seems bent on destroying Western Civilization. After a long litany of laws, policies, and court opinions designed to undermine and attack the family and Christianity, the final blow could be decreed in just the next several days. I speak of the impending ruling on homosexual marriage.

It appears the U.S. Supreme Court is about to trample the constitutions of 31 states – another frontal assault against family. Sociologists like Carle Zimmerman (Family and Civilization, (Intercollegiate Studies Institute; 2nd abridged edt., 2008)) and J.D. Unwin (Sex and Culture, (Oxford University Press; 1st edt., 1934)) have proven conclusively that when nations denigrate God’s created order regarding family, they cannot survive. There has never been an exception in the history of the world.

Every good Statist knows that in order to strengthen the State — you have to weaken the family. The federal government has been imposing law and policy to accomplish that end for decades now. Meanwhile, the lower magistrates — who in a true federalism know they possess lawful authority and a duty to interpose — have decided to hide behind the lie that “A federal court has ruled, so we can do nothing but obey.”

Most Americans no longer understand that the states were never intended to be mere provinces of the federal government. They were never intended to be mere implementation centers for unjust and immoral federal laws, policies, and court opinions.

Herbert Schlossberg speaks to this point in his magnum opus, Idols for Destruction. He says, regarding the lesser magistrates:

“The framers of the American Constitution were conscious of the excesses to which centralized political systems were prone, and their solution was to devise multiple levels of authority. The existence of states, cities, counties, townships, and independent taxing authorities, which, to apologists for the state, has been a messy derogation from beneficent centralized power, has saved us from some of the assaults on freedom that others have suffered.” [Herbert Schlossberg, Idols for Destruction: Christian Faith and Its Confrontation with American Society (Nashville: Thomas Nelson Publishers, 1983) 213.]

Schlossberg points out, however, that in our day these “intermediate institutions, which formerly served to check the central power, have largely atrophied.”

He later reveals how the federal government has pulled this off:

“After three-quarters of a century, the new nationalism has borne bitter fruit. People who have despised the right of localities to govern themselves have delivered them into the hands of federal masters. Local politicians have acquiesced in the mugging of the provinces because in return for giving up political authority they have received monetary benefits.” [Schlossberg, Idols, 214.]

The U.S. Constitution did not bind the states to a suicide pact with a lawless federal government. The idea that the states (and lesser authorities) must obey a lawless federal judiciary is a fiction. The insanity being imposed by the federal government has reached such a fever pitch that people have begun to question, “At what point do we offer resistance to this federal behemoth?” And more importantly, “What form of resistance is legitimate and has a chance for success?”

The Doctrine of the Lesser Magistrates

A tool that is found in Scripture and proven in history to rein in tyrannical acts by the higher authority is known as “the doctrine of the lesser magistrates.”

The lesser magistrate doctrine states that when a higher-ranking civil authority makes unjust or immoral laws, policies, or court opinions, the lower or lesser-ranking civil authority has the God-given right and duty not to obey the higher authority. If necessary, the lower authority may even actively resist the superior authority.

The foremost treatise ever written on the doctrine was penned by John Knox. His Appellation to the Nobles of Scotland (1558) cited over 70 passages of Scripture (John Knox, Selected Writings of John Knox, edit. Kevin Reed (Dallas, TX: Presbyterian Heritage Publishing, 1558/1995)). Knox insisted that the nobles, as lesser magistrates, were responsible to protect the innocent and oppose those who made unjust or immoral laws or decrees.

An apt summary of the doctrine was actually voiced by a higher magistrate, Roman Emperor Trajan. While giving a subordinate a sword, Trajan stated to him. “Use this sword against my enemies if I give righteous commands, but if I give unrighteous commands, use it against me.”

John of Salisbury, in his work Policraticus (1159), spoke of the duty of lesser magistrates when faced with tyrannical acts by the higher authority. He wrote:

“Loyal shoulders should sustain the power of the ruler so long as it is exercised in subjection to God and follows His ordinances; but if it resists and opposes the divine commandments, and wishes to make me share in its war against God, then with unrestrained voice, I answer back that God must be preferred before any man on earth.” [John of Salisbury, The Statesman’s Book of John of Salisbury – Policraticus, trans. John Dickinson (New York, NY: Russell & Russell, 1159/1963) 258.]

And now, here in our day — we are confronted with a tyrant.

The interposition of the lower magistrates is not subjective or lawless. There are only three reasons for open defiance to the higher civil authority. First, they are to oppose and resist any laws or edicts from the higher authority that contravene — violate, oppose, or contradict — the law or Word of God. Second, they are to protect the person and property of those who reside within their jurisdiction from any unjust or immoral laws or actions by the higher authority. Third, they are not to implement any laws or decrees made by the higher authority that violate the U.S. Constitution or their state constitution, and if necessary, resist them.

The interposition of the lower civil authority is not anarchy or chaos. Rather, when the higher authority makes laws, policies, or court opinions which accomplish any of these three reasons, it is they who have acted as anarchists; it is they who have brought chaos. The interposition of the lower magistrates acts to restore order.

Application of the Doctrine in Our Day

When the higher authority puts the force of law behind the behavior of perverse and base men, the interposition of the lesser magistrates is necessary. How would such interposition be applied in our day?

A governor of a state should refuse to implement any federal court opinion that tramples the state’s constitution and imposes homosexual marriage upon the people. Unfortunately, all of the governors who have had their state’s constitutions trampled have hidden behind the common lie of the lower authorities, namely, “A federal court has ruled, we must obey.”

Most point to the Supremacy Clause of the U.S. Constitution to justify their cowardice, but the Supremacy Clause — Article 6, paragraph 2 of the U.S. Constitution — nowhere declares that the U.S. Supreme Court, nor any federal court, has supremacy over the constitutions or laws of the states or the judges of states. Rather, it states that the U.S. Constitution has supremacy and laws or treaties made in accordance with the Constitution.

That this is fact is not only seen in the plain reading of the Clause, but also by the actions of the only state that thus far has stood in defiance of federal tyranny — Alabama. On January 23, 2015, a federal judge trampled Alabama’s constitution and demanded that homosexuals be allowed to marry.

In a separate mandamus proceeding, the Alabama Supreme Court responded to this federal lawlessness by ordering the probate judges that issue marriage licenses to not issue them to homosexuals. This stopped all such “marriages” cold. No homosexuals have been married in Alabama since this act of interposition by the Alabama Supreme Court.

Governors are not the only state officials in a position to uphold their oath of office and interpose. County clerks and probate judges who issue marriage licenses could refuse to issue them to homosexuals. Some already have. Most in Alabama refused to issue them even before the Writ of Mandamus by the state supreme court ordering them not to issue them.

State legislatures should support such brave magistrates with laws and resolutions to protect them. Any and all positions of civil authority — whether through election or appointment — should refuse to be party to such a depraved action as two men or two women marrying. They should also refuse to re-write their state statutes to comply with such an immoral federal imposition.

County boards, village boards, town boards, and city councils can pass laws that interpose against such immoral federal usurpation.

Silence and compliance always allows the tyrant authority the convenience of covering his unjust or immoral actions. If everyone just goes along with the tyranny of the higher authority, the tyranny they have imposed can more readily go unnoticed. When men take a stand in defiance of tyranny, however, it forces the tyrant authority out of his lair as he responds by hammering those who refuse to join him in his rebellion against God. People begin to see the tyrant authority for what it is.

When civil authority acts tyrannically, it always counts on the compliance of its lower authorities. Peasant revolts are easily put down. But when the lesser magistrates refuse obedience — that is when tyrant civil authority has a problem on its hands.

America’s founders never expected the federal government or its judiciary to be the lone arbiter of its actions. James Madison, the architect of the U.S. Constitution, stated that when the federal government makes unjust or immoral laws or policies, “…the states who are parties thereto [parties to the U.S. Constitution] have the right, and are in duty bound, to interpose for arresting the progress of evil.” (Virginia Resolution, 1798.)

Thomas Jefferson stated, “…and that whensoever the general government [the federal government] assumes undelegated powers, its acts are unauthoritative, void, and of no force.” (Kentucky Resolution, 1798.)

The Role of the People

The people play a huge role in the doctrine of the lesser magistrates. Often, the lower civil authority will refuse to do what is needed and necessary. They will refuse to confront the tyrant’s higher authority. The people must prod their lower magistrates to do so.

Abolitionist Frederick Douglass once stated:

Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or both. The limits of tyrants are prescribed by the endurance of those whom they oppress. [Frederick Douglas, West India Emancipation Speech, Canadaigua, NY; August 3, 1857.]

The people must demand that their lower civil authorities defy federal tyranny. They must not allow them to hide behind the lie “we must obey.” The lower magistrates often will not act until the people rally them. When the lower authority does defy, it is imperative that the people support them with their resources, with their bodies, with their very lives.

The people need to build relationship with their local authorities. The people should (and do) — by their action or inaction — play a role of immense importance when it comes to the effectiveness of the lesser magistrates’ interposition against tyranny.

When it comes to homosexual marriage being forced upon the states, the federal government has (i) contravened the law, Word, and created order of God, (ii) attacked our persons and property including our sons and daughters, and (iii) violated its limited delegated authority in the U.S. Constitution — they have accomplished all three in this immoral action. The lower civil authority is duty bound to interpose against such insanity being paraded under the color of law.

The lesser magistrate doctrine was first formalized by the pastors of Magdeburg, Germany in 1550. In what is known as the Magdeburg Confession, they proved from Scripture and history that lower civil magistrates have the God-given right and duty to defy a tyrant higher civil authority.

In near-prophetic fashion, they used marriage as an example of when lesser remedies would not work and open defiance by the lower authorities was necessary. They stated in the Confession:

Therefore, if now the leader or Caesar proceeds to such height of insanity only in that of natural knowledge which governs the society of civil life and uprightness, that he abolishes the law concerning marriages and chastity, and himself sets up a contrary law of roving unclean lusts … in such a case, doubtless, no clear-thinking person would have any hesitation about the divine right and commandment that such a leader or monarch ought to be curbed by everyone in his most wicked attempt, even by the lowest of the lowest magistrates with whatever power they may have. [Matthew Colvin, trans., The Magdeburg Confession (1550) (North Charleston, SC: Createspace Publishing, 2012) 60.]

The interposition of the lesser magistrates reminds the higher authority that their authority is delegated and limited. No man who holds government office rules with autonomy. The authority he has is delegated to him by God. All those in positions of authority stand accountable to God — even the Federal Government.

The people have the duty to rally their lesser magistrates in support of what is right, and against the immoral actions of the federal government. If the U.S. Supreme Court legalizes homosexual marriage, no state with constitutional provisions or statutes against sodomite marriage should recognize the Supreme Court’s immoral ruling, rather they should defy it.

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Matthew Trewhella is the pastor of Mercy Seat Christian Church (MercySeat.net). He and his wife, Clara, have eleven children and reside in the Milwaukee, Wisconsin area. You can obtain his book “The Doctrine of the Lesser Magistrates: A Proper Response to Tyranny and A Repudiation of Unlimited Obedience to Civil Government” at Amazon.com.

This article regarding the tyranny of same sex marriage 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.