The U.S. Supreme Court will issue its opinion in the Obergefell v. Hodges case later this month. The complainants in the four cases consolidated under Obergefell ask the Supreme Court to, in effect, strike down state laws limiting recognition of “marriage” to the union of one man and one woman. Their complaints allege violation of equal protection and/or due process safeguards found in the Fourteenth Amendment of the U.S. Constitution. State officials in my home state of Indiana, as well as the other sovereign states, are duty-bound, as a result of their oath of office, to disregard such meddling in state marriage policy by the federal government – especially by the Supreme Court.

It’s a well-established principle in government that personnel subordinate to a higher command authority are required to follow only “lawful” orders directed to them. This principle is made express in the military, where the Uniform Code of Military Justice (Title 10 of the U.S. Code) requires that “any person subject to this chapter who … violates or fails to obey any lawful general order or regulation … shall be punished as a court-martial may direct.”

Note that a member of the Armed Services of the United States is subject to court-martial if he “violates or fails to obey” a “lawful” precept directed to him. The obvious inference is that a member of the armed services is not subject to punishment for his refusal to obey an order which is not “lawful.” At least since Nuremburg, military law does not allow a soldier to argue in a court martial proceeding that he was “just following orders” if those orders were unlawful.

How do these principles apply in the context of the judiciary? Article III of the U.S. Constitution expressly only creates “one supreme Court,” and then authorizes Congress to create courts “inferior” to the Supreme Court. Section 27 of the Judiciary Act of 1789 mandated that “a marshal shall be appointed in and for each [judicial] district …, whose duty it shall be … to execute throughout the district, all lawful precepts directed to him, and issued under the authority of the United States.” Once again, marshals are empowered to execute only “lawful” orders issued by the judiciary. If in enacting the Judiciary Act of 1789, Congress considered all judicial orders to be lawful, it would have not included the word “lawful” in that statute. If federal officials are bound to execute only those “precepts” which are “lawful,” how then should state officials consider their duty to faithfully execute their offices under the U.S. Constitution?

In order to understand the duty of a state official, it is necessary to understand the doctrine of federal “preemption.” Constitutional law scholars and lawyers routinely assert that federal law and federal judicial edicts “preempt” state and local law and state judicial edicts. That is, whenever the federal government takes an action, any state or local action to the contrary is “preempted” by the federal action. The doctrine of preemption is grounded in the Supremacy Clause in Article VI of the Constitution. The Supremacy Clause states:

“This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;… any thing in the constitution or laws of any state to the contrary notwithstanding.”

Should the majority of Supreme Court justices believe that the U.S. Constitution prohibits states from defining marriage as only between one man and one woman, it will be widely assumed that the Supremacy Clause of the U.S. Constitution “preempts” the “constitution or laws of any state to the contrary” solely because of the opinion issued by the High Court. However, the doctrine of preemption is not unlimited, as those lawyers and politicians who embrace the doctrine of judicial supremacy seem to believe. Let’s re-examine the original plan.

In explaining the supportive role that the states would play in the proper operation of the federal government, Alexander Hamilton put it this way in Federalist Paper No. 27:

“the legislatures, courts and magistrates of the respective members [i.e., states] will be incorporated into the operations of the national government, AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws.” [Capitalization original.]

Thus, properly understood, preemption only applies to the “JUST and CONSTITUTIONAL authority” of the federal government. Given that (i) the law of domestic relations and marriage policy has never been made the “JUST and CONSTITUTIONAL AUTHORITY” of the federal government (except for the District of Columbia and federal territories) and (ii) the Equal Protection Clause of the Fourteenth Amendment applies only to a limited set of protections in state-administered legal processes, there is no “lawful” basis for a claim of preemption in this case.

The duty to disregard any federal judicial usurpation of the states’ lawful jurisdiction of marriage policy flows from another constitutional clause which invokes a duty to an even higher authority than any temporal legal system, federal or state. Immediately following the Supremacy Clause, Article VI of the Constitution provides that “the members of the several state legislatures, and all executive and judicial officers … of the several states, shall be bound by oath or affirmation, to support this constitution.” Known as the “Oath or Affirmation Clause,” this provision requires every state official to swear or affirm their fidelity to the U.S. Constitution. In explaining the profound relationship between the Supremacy and the Oath or Affirmation Clauses, Alexander Hamilton highlighted the limited application of both. Once again in Federalist Paper No. 27, Hamilton remarked,

“the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which, all officers legislative, executive and judicial in each State, will be bound by the sanctity of an oath.” [Capitalization original.]

It’s clear that state officials are “bound by the sanctity of an oath” to observe “the laws of the Confederacy.” However, that oath is limited in its application to the “ENUMERATED and LEGITIMATE objects of” the Confederacy’s jurisdiction. The power to overrule the states’ restrictions on marriage policy has never been added to the “ENUMERATED and LEGITIMATE objects of” the jurisdiction of the United States. Therefore, without the future addition of such authority through the process set out in Article V for amending the federal Constitution, no order pursuant to any such opinion is “lawful.”

Finally, it cannot be overemphasized at this juncture that no provision of the U.S. Constitution elevates an opinion issued by the federal judiciary — including an opinion issued by the U.S. Supreme Court — to the level of the “supreme law of the land.” Indeed, there is only one time that I have ever heard that the U.S. Supreme Court was so consumed with pride to have even uttered such a radical principle. See Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]hat the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’”).

This aberrational statement of the Supreme Court should be viewed as a very lonely exception to the view of Blackstone as embraced generally by our Framers that “the law and the opinion of the judge, are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law.” I. W. Blackstone, Commentaries on the Laws of England 71 (Univ. Chi. facsimile ed. 1765).

Additionally, no provision of the U.S. Constitution obligates any elected official — federal or state — to “be bound by oath or affirmation, to support” an opinion issued by the federal judiciary.

If it had been the intention of the Constitution’s framers to exclusively delegate all questions of Constitutional finality to the unelected, life-tenured members of the U.S. Supreme Court — and to relegate every other elected office — federal and state — to a position of subservience to the decisions of that Court, Article VI of the United States Constitution would have been the place in the U.S. Constitution where this peculiar doctrine would have been made obvious. From its omission, it is clear that this was never the Framers’ intent.

Therefore, state officeholders remain bound by the sanctity of the oath they took which binds them to uphold their respective state constitutions and the laws which define and regulate marriage in their particular member of the Confederacy. They cannot be considered “good soldiers” by doing anything else.

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John Hostettler served in the U.S. House of Representatives from 1995-2007; he is author of Ordained and Established: A Statesman-Citizen’s Guide to the United States Constitution (www.ordainedandestablished.com).

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Should you want to help support this important work, contributions may be made to the U.S. Justice Foundation.

Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

I was a law student when I first learned of the consequences of not being politically correct concerning homosexuality. A former Miss America’s contract as the citrus growers’ brand-ambassador was allowed to lapse because she had successfully campaigned for the repeal of a pro-homosexual ordinance in Miami-Dade County. She was quoted as saying, “What these people really want, hidden behind obscure legal phrases, is the legal right to propose to our children that theirs is an acceptable, alternate way of life.” She was publicly humiliated — “pied” on national television — and her name — Anita Bryant — became synonymous with something called “homophobia” and “hate speech.”

As a new Air Force J.A.G. officer, my first court assignment was to represent the United States in an administrative discharge proceeding concerning a female service member. She was being kicked out of the service for allegedly engaging in homosexual acts. Even as an inexperienced young lawyer, I managed to prove that she had committed the requisite two homosexual acts. She was given a “general” discharge and sent back to the United States.

I don’t remember when thereafter I first noticed that there are only two instances in which “sex” occurs in the “ethics” rules for lawyers. Both are in the same, “anti-discrimination” provision: “A lawyer shall not willfully, in connection with an adjudicatory proceeding … manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.” There it was — right there with the prohibition racial discrimination; a lawyer could not “manifest” any “bias or prejudice” based on “sexual orientation.” Hadn’t I done precisely that just a few years earlier? Hadn’t I done that on behalf of the United States government? And yet in that case, I hadn’t set out to prove that the female service-member was a homosexual. My task was limited to proving that she had engaged in homosexual conduct.

Then, suddenly, the issue of homosexual rights — that is, not the right to be a homosexual — but the right to openly engage in homosexual practices and be insulated from any push back from the rest of society — was everywhere. Suddenly it had become a daily staple of bar journals and legal news sources. I don’t remember when I first noticed that. Was it when California’s voters approved a referendum that “only marriage between a man and a woman is valid or recognized in California”? It must have been before then. It must have been as early as 1993 when I first noticed the enormous consequences of this new so-called right. That was the year Travis County, Texas legalized “domestic partnerships,” in order to attract business investment to Austin, the state capitol.

Not until the spring of 2015, however, did the consequences of this new “right” really began to sink in for me. That’s when I knew that people who for years had thought that the emerging collection of special protections for homosexual behavior was, “no big deal,” were flat wrong. Indiana Gov. Mike Pence had signed a “religious freedom” bill. The backlash, in the name of homosexual rights, was ferocious with the now infamous threats and boycott of a small-town pizza joint whose owners had the temerity to volunteer that they would decline to cater a homosexual marriage celebration.

So, now we know that Anita Bryant was right — at least partly so — when she embarked on her doomed campaign nearly 40 years ago. Ms. Bryant primarily worried about children being confronted with a dangerous alternative way of life. Today, all opponents of special homosexual rights have cause to be worried about their very survival — legal and economic. Anyone who opposes the new Manifesto of homosexuality and gender neutrality/gender identity is at risk.

Using statutes originally and primarily (if not exclusively) designed to protect blacks from discrimination, activist homosexuals have targeted bakers, photographers, and florists, seeking to force all of them to promote a “marriage” that they believe to be immoral. One day, such laws probably will be deployed against writers of articles like this one.

In Washington State, a judge ruled that a florist violated the state’s anti-discrimination laws when she referred a longtime customer to another florist for the wedding flowers for his homosexual marriage. In New York, a husband and wife shut the doors to their business hosting weddings on their family farm, after a court fined them $13,000 for refusing to host gay marriages in their home. In Colorado, a baker faced jail time and stopped baking wedding cakes entirely, after a court ruled that he discriminated against a gay couple when he refused to bake them a cake for their wedding. In Oregon, a court found similarly against another baker, and he may be forced to pay a homosexual couple up to $150,000 as penalty. The New Mexico Supreme Court held that a photographer violated the state’s anti-discrimination statutes by refusing to photograph a gay wedding. Newspapers likely will be forced to publish homosexual wedding announcements, in violation of their existing editorial control over what they publish.

Even pro-same sex marriage, libertarian, John Stossel has said that the gay marriage movement “has moved from tolerance to totalitarianism.”

To homosexual activists and their political supporters, it matters not one whit that homosexuality is not consistent with Biblical sexual morality.

In this brave, new, homosexual-friendly world, every licensed professional would be required to embrace the new orthodoxy — to bow down to the idol of “non-discrimination,” or be cast out of his profession. I was co-counsel on an amicus brief against same-sex marriage in the Obergefell case; the Texas Attorney General also filed an amicus brief on behalf of the State of Texas against same-sex marriage. Does that put us in violation of the ethics rule previously quoted?

If the U.S. Supreme Court forces same-sex marriage on the states, unless the states resist such a ruling, the legal system will be employed to squash resistance to the new order. Lawyers who oppose this not-so-brave new world will begin to lose their right to practice law for violation of the new so-called “ethics” of the profession. An Obama Department of Health and Human Services will push for all physicians who stand up for Christian morality to be stripped of their hospital privileges and medical licenses.

According to the advocates of homosexual marriage in the U.S. Supreme Court, the right to a homosexual way of life is enshrined in the penumbras and emanations of the Fourteenth Amendment’s guarantee of Equal Protection — or is it Due Process — or both. (Apparently, this even explains why the Civil War itself was fought.) In fact, this new right is said by these advocates to be so deeply embedded in the Constitution that it trumps the First Amendment’s guarantees of freedom of speech, freedom of religion, and freedom of association. And it empowers government to run aspects of our lives that it has no business controlling.

The same people who first claimed only to only want tolerance of their behavior will allow no toleration for other views. Will a physician be forced to perform an artificial insemination for a lesbian couple? Will a lawyer be forced to take a case defending gay marriage? Lawyers are already losing their “traditional prerogative to exercise absolute discretion in the selection of clients….” Provisions designed to advance the homosexual agenda have been incorporated into many state legal ethics codes. In California, for example, it is unethical to “discriminat[e] on the basis of … sexual orientation [in] employment … or [client] representation….” State Bar of California, Rules of Professional Conduct: Rule 2-400B. If you doubt this view of the future, read R. Beg, License to Discriminate Revoked: How a Dentist Put Teeth In New York’s Anti-Discrimination Disciplinary Rule,” 64 Albany L. Rev. 154 (2000).

I fear that the legal system has lost its way, and the case now before the U.S. Supreme Court could well lay the groundwork for government to assume the sort of totalitarian powers required to force everyone to yield to what most of us hopefully still believe to be immoral. But it doesn’t have to be that way. Instead, right-thinking people can and should not be afraid to assert their God-given rights. They should not — must not – fail in their duty to teach Biblical sexual morality to their children despite state-sponsored interference. They should accept the challenge and obey their conscience — even if that means refusing totalitarian orders to bow down at the altar of homosexuality. We did not seek this war, but if it comes, we must not shirk from it.

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J. Mark Brewer, a former U.S. Air Force JAG officer, is a lawyer in Houston, Texas. He was co-counsel on an amicus brief filed in the Obergefell case before the Supreme Court.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Should you want to help support this important work, contributions may be made to the U.S. Justice Foundation.

Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

Photo Credit: APWhy have the pro-natural family forces been losing in court? Intentionally or not, Judge Richard Posner explained the reason in a 7th Circuit Court ruling (Sept. 4, 2014), in which he decided against the Indiana and Wisconsin laws restricting marriage to a man and a woman:

“The state [Wisconsin] does not mention Justice Alito’s invocation [in the Windsor case] of a moral case against same-sex marriage, when he states in his dissent that ‘others explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.’ [U.S. v. Windsor, 133 S.Ct. 2675, 2718 (2013).] That is a moral argument for limiting marriage to heterosexuals. The state does not mention the argument because as we said, it mounts no moral arguments against same-sex marriage.” Baskin v. Bogan, 766 F.3d 648, 669 (7th Cir. 2014) (emphasis added).

While Justice Alito recognizes that there is a moral argument for limiting marriage to heterosexuals, it was not only the State of Wisconsin that failed to make such a case. Neither have the States of Michigan, Kentucky, Ohio, or Tennessee in Obergefell, the decisive case now before the U.S. Supreme Court. I believe that this is one of the key reasons that the pro-natural family position has been losing in most of the cases thus far.

With the moral foundation missing, an air of unreality pervades the federal court system. Let us see how unreal by looking at a couple of examples. When invalidating Oregon’s constitutional ban on same-sex marriage (May 19, 2014), U.S. District Judge Michael McShane wrote in his opinion,

“I believe that if we can look for a moment past gender and sexuality, we can see in these [same-sex] plaintiffs nothing more or less than our own families. Families who we would expect our constitution to protect, if not exalt, in equal measure.” Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1147 (D. Or. 2014).

This is an extraordinary remark. What Judge McShane calls “gender and sexuality” is the only means by which families are generated. Since families come from parents, you cannot look past parents and still have a family — because there would be no family there. Homosexual acts cannot generate families; therefore, their “families” cannot be the same. If there are children present, we may be sure that both parents of the children are not present in that family. That is a lot to look past.

In Virginia, U.S. District Judge Arenda L. Wright Allen voided as unconstitutional that part of the Virginia state constitution and the Code of Virginia that define marriage as between one man and one woman. Ineptly, she began her decision on February 13, 2014, by confusing the basic texts of the American Founding (since corrected by her). She apparently thought that the phrase “all men are created equal” comes from the Constitution. It is, of course, perhaps the single most famous line in the Declaration of Independence. Judge Wright Allen appealed to this principle to endorse same-sex marriage on behalf of two lesbian and homosexual couples who brought suit against Virginia.

Why did Virginia have laws against unnatural marriage in the first place? One would have to conclude from Judge Wright Allen that it was motivated by sheer prejudice and that only now has the light dawned upon the court that this is unfair. In fact, like Justice Anthony Kennedy in the Windsor decision, she asserted that there was a lack of “any rational basis” in Virginia’s exclusion of same-sex couples from marriage. In fact, she inaccurately stated that, “These laws limit the fundamental right to marry to only those Virginia citizens willing to choose a member of the opposite gender for a spouse.” Actually, they limit marriage much further than that — to exclude minors, the already married, immediate kin, and others. But why might this limitation exist in respect to same-sex couples? Judge Wright Allen never says, though she could have drawn upon several thousand years of Western and other civilizations to do so.

Here is part of what she neglected to say. In 1885, in Murphy v. Ramsey, which upheld the ban against polygamy in the Utah territory, The U.S. Supreme Court eloquently put forth the “legitimate purpose” of marriage:

“For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth… than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.”

However, Judge Wright Allen might believe that this is exactly what same-sex couples want in marriage, as well. Perhaps my favorite line from her ruling is that the “[homosexual persons] meet all of the legal requirements for marriage in Virginia except for the fact that they are the same gender.” This is like saying that the only thing that prevents ten year olds from marrying is that they are too young. Or, the only thing that prevents a giraffe from being a donkey is the fact that it is a giraffe.

Homosexuals cannot be “married” — not for reasons having anything to do with heartless conservatives or with the law, but everything to do with how human beings are made. The ultimate, inbuilt end of sex is to make “one flesh,” which is what happens in marriage between a man and a woman. Two becoming “one flesh” encompasses both the generative and unitive nature of sex. Only men and women are physically capable of becoming “one flesh.” Only a unitive act can be generative, and only a generative act can be unitive — in that only it makes two “one flesh.” That is why the unitive and procreative aspects of sex are essentially inseparable, and why they find the fulfilment only in the unique station of marriage.

For homosexual couples, the marital act is physically impossible — the pieces don’t fit — and the attempt to imitate it through sodomy is incapable in any circumstances of generating new life.

One thing that same-sex couples all share is a unique disability to express either the unitive or procreative essence of conjugal relations. For these reasons, among many others, common law has held through the centuries that marriage can be only between a man and a woman. Common law also held that if a marriage is not consummated, it could be declared to be a legal nullity. It is astonishing that Judge Wright Allen seemed to be unaware of these basic facts. In some states, entering into a marriage with the intent of never consummating it is considered marital fraud. Since same-sex marriages cannot be consummated, why aren’t they considered marital fraud?

One can expect such constitutional and moral illiteracy from the opponents of natural marriage, but what about from its defenders? For instance, in 2009, California’s Proposition 8, a constitutional amendment restricting marriage to one man and woman, was challenged in the U.S. District Court for the Northern District of California before then closeted homosexual District Judge Vaughn Walker. Since the State Attorney General and the Governor had refused to defend their State’s own constitution, other groups stepped in, hiring attorney Charles Cooper to plead their case. Here is what Cooper argued to the U.S. Supreme Court in the Hollingsworth v. Perry case as a defense of California’s Proposition 8:

“But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there’s no way that she or anyone else could possibly know what the long-term implications of – of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.”

This is risibly weak. Wait for additional information? Cooper suggested that it was a lack of knowledge concerning the outcome of unnatural marriage that led to skepticism as to its soundness, rather than the moral knowledge that such an arrangement was against the “Laws of Nature and of Nature’s God,” and therefore could not possibly be advanced as a right. Since chastity is the moral principle of marriage, how could an unchaste act — such as sodomy or any other homosexual act — be the basis of marriage? Something cannot be its opposite.

Cooper studiously avoided saying anything like this. He was at pains to portray the issue of marriage as one of states’ rights. However in doing so, he assumed a moral equivalence of traditional marriage and same sex marriage. This left him in the position of Stephen A. Douglas in the Lincoln/Douglas debates. Douglas said that the slavery issue should be left to the states to decide, as there was nothing inherently right or wrong in slavery. Popular sovereignty should reign. Cooper adopted an analogous position concerning marriage — it is a states’ rights issue. However, homosexual proponents have taken on themselves the mantle of civil rights; they claim (inappropriately) to be Lincoln in this debate. This left Cooper in a sure-to-lose position — taking, analogously, the slavery position in an antislavery fight. Does that sound too harsh? Here is Cooper’s own statement, posted on National Review Online, 5/2/14, setting out his legal strategy:

“The heart of our defense, from beginning to end, was the simple proposition that people of goodwill can reasonably disagree over whether marriage should be redefined to include same-sex couples, and that the Constitution, therefore, leaves resolution of that controversial public policy issue in the hands of the voters of each State, to decide according to their own social, political, and moral values, and does not place it in the hands of federal judges. Our position on the constitutional issue was thus entirely distinct from, and did not take sides on, the social policy issue. Indeed, in my initial appearance in the District Court, I stated that if the tables were turned — if California’s voters had adopted gay marriage, as the voters of several states now have — I would be no less willing to defend their right to make that decision too.”

In other words, the lawyer hired to defend traditional marriage conceded that sodomitical marriage can be a positive good, so long as it is approved by a majority.

Later we learned why Cooper was not prepared to make the moral case for marriage. The deeper underlying reason for his incapacity surfaced in 2014, when he revealed that he actually has taken sides: “My daughter Ashley’s path in life has led her to happiness with a lovely young woman named Casey, and our family and Casey’s family are looking forward to celebrating their marriage in just a few weeks.” Cooper stated that, “I told Ashley that what matters most is that I love her and she loves me.” However, as Edith Stein said, “Do not accept anything as love which lacks truth.” Love contains an obligation to the truth — especially transcendent truths regarding the ordering of our souls to the Good. Is this Good not compromised by unnatural marriage? Love seeks the well-being of the other person. An unchaste act, which is any homosexual act, harms the person on whom it is performed and the person performing it. Cooper explains that his “views evolve on issues of this kind the same way as other people’s do, and how I view this down the road may not be the way I view it now, or how I viewed it 10 years ago.” Let us be clear as to how one can “evolve” in this way: one is historicism, the other positivism — both are inimical to America’s Founding and to understanding our Constitution correctly.

Many homosexual “marriage” opponents seem to suffer a sense of moral illegitimacy — and this includes many Republicans. They have the right instinct, but do not know how to express their view. When they are put on the spot to defend their position, they really have no way to explain it. Since they do not want to be embarrassed, they simply shut up or retreat. Most of these people have no background in moral philosophy or ethics. They are products of our modern educational system which denudes the mind of any notion of natural law, which is the fundamental point from which unnatural “marriage” should be opposed, and replaces it with moral and cultural relativism.

The reason for the kind of backpedaling exhibited in Indiana, whose Governor Michael Pence could not adequately support the religious freedom protection law he had signed, is that so many refuse to recognize what this conflict is really about. The retreat to the position of defending religious freedom means that the issue of the immorality of sodomy and other homosexual acts has been abandoned – both in and out of court. That is a terrible substantive and strategic error. Giving up on the moral issue basically gives the whole issue away — because if sodomy is not wrong, then not allowing it to serve as the basis of marriage must be bigotry. One must forthrightly say and show that sodomitical behavior is against the “Laws of Nature and of Nature’s God” and that, therefore, it cannot be advanced as a right. If sodomy is wrong, then it cannot be the basis of marriage.

Alas, one will not be able to find any such moral principles set out in the parties’ briefs filed in the marriage case to be decided by the U.S. Supreme Court later this month. For example, the State of Michigan’s brief states that: “This case is not about the best marriage definition. It is about the fundamental question regarding how our democracy resolves such debates about social policy…” Yes, it is partly about how things are decided, but it is also about what is being decided. It is not simply a procedural issue; it is also a substantive one.

After giving a thoroughly inadequate description of what marriage is, the Michigan brief gives the characterization of the same-sex view “that marriage is primarily about commitment, with gender and biological procreation taking less prominent roles. From this perspective, marriage is a commitment that grounds couples and provides familial stability.” What, I wonder, is the purpose of participating in your opponent’s denial of reality? Do grapes in the process of winemaking take a “less prominent role” in a winemaking process that uses no grapes? One of those processes produces wine; the other one does not. Is a non-grape simply a “less prominent” grape? Is an empty glass the same as a full one? Then this asinine observation is added: “Importantly, neither view stigmatizes the other; they are simply different conceptions of what the marriage institution should be.” Well, yes, they are different, in fact, contradictory. If there is something the marriage institution “should” be, shouldn’t a conception of marriage antithetical to it be stigmatized?

Next we learn from the Michigan brief that voters should be able to decide such issues “on decent and rational grounds.” After giving away those “rational grounds” in the brief’s introduction, it is not surprising that the petitioners nowhere present those grounds. Instead we hear that, “The difference in these views is not that one side promotes equality, justice, and tolerance while the other endorses inequality, injustice, and intolerance.” Well, then, what is the difference? Are right and wrong simply two different views of morality, neither of which is false? This is the path to insanity, and to another loss in court. Natural marriage and unnatural “marriage” are not two kinds of marriage: one is marriage, and the other is not. If you’re not willing to say at least this much, why bother saying anything? Michigan is tying the noose around its own neck, but at least it is consistent, with Judge Posner’s words, in giving “no moral arguments against same-sex marriage.”

That is not to say that the moral arguments have not been made to the Court – but that job fell to the amici curiae. The moral and Biblical cases against same-sex marriage were made by Foundation for Moral Law, and Public Advocate, U.S. Justice Foundation, and certain other amici.

Kentucky’s brief seeks to “urge this Court to resolve the issues creating the legal chaos that has resulted since Windsor.” Unfortunately, what the Court is going to do in the way of resolution is pretty much a foregone conclusion. The question will soon arise: what, then, are we going to do?

The homosexual movement will not succeed in the long run. Dream worlds do not last. They invariably turn into nightmares from which people eventually wake themselves. How long that takes and how much damage it incurs in the meantime will depend partly on us.

Reflecting on his experiences in Nazi Germany where he had been imprisoned, Heinrich Rommen wrote: “When one of the relativist theories is made the basis of a totalitarian state, man is stirred to free himself from the pessimistic resignation that characterizes these relativist theories and to return to his principles.” We have the means at hand to return to this country’s first principles: they are called “the Laws of Nature and of Nature’s God.” We need them now as much as did our Founders. Let us return to them forthwith — before it is too late.

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Robert R. Reilly is the author of Making Gay Okay: How Rationalizing Homosexual Behavior Is Changing Everything. He served as a Special Assistant to President Ronald Reagan and was the Director of the Voice of America.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Should you want to help support this important work, contributions may be made to the U.S. Justice Foundation.

Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.