Statement Calling for Constitutional Resistance to Obergefell v. Hodges 

We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hodges wherein the Court decreed, by the narrowest of margins, that every state in the country must redefine marriage to include same-sex relationships.  

The Court’s majority opinion eschewed reliance on the text, logic, structure, or original understanding of the Constitution, as well as the Court’s own interpretative doctrines and precedents, and supplied no compelling reasoning to show why it is unjustified for the laws of the states to sustain marriage as it has been understood for millennia as the union of husband and wife.

The opinion for the Court substituted for traditional—and sound—methods of constitutional interpretation a new and ill-defined jurisprudence of identity—one that abused the moral concept of human dignity.

The four dissenting justices are right to reject the majority opinion in unsparing terms.  

Justice Scalia refers to it as “a naked judicial claim to legislative….power; a claim fundamentally at odds with our system of government.”  

Justice Thomas says the opinion “exalts judges at the expense of the People from whom they derive their authority” as it perverts the meaning of liberty into an entitlement to government action. 

Justice Alito calls attention to the well-established doctrine that the “liberty” guaranteed by the due process clause protects only those rights “that are deeply rooted in this Nation’s history and tradition,” and that it is “beyond dispute that the right to same-sex marriage is not among those rights.” He further points to the opinion’s tendency to reduce the purpose of marriage to “the happiness of persons who choose to marry.” He warns it will be used to “vilify Americans who are unwilling to assent to the new orthodoxy” and is yet another example of the “Court’s abuse of its authority.”  

Chief Justice Roberts says “the Constitution leaves no doubt” that the majority’s “pretentious” opinion is incorrect. It even attempts to “sully those on the other side of the debate” in an “entirely gratuitous” manner.  

If Obergefell is accepted as binding law, the consequences will be grave. Of the results that can be predicted with confidence, four stand out:

First, society will be harmed by being denied the right to hold out as normative, and particularly desirable, the only type of human relationship that every society must cultivate for its perpetuation. This compelling interest is strengthened by the fact that there is strong evidence to support what common sense suggests, namely, that children fare best when raised by their married mother and father who are both responsible for bringing them into the world and who provide maternal and paternal influences and care. 

Second, individuals and organizations holding to the historic and natural understanding of marriage as a conjugalunion—the covenantal partnership of one man and one woman—will be vilified, legally targeted, and denied constitutional rights in order to pressure them to conform to the new orthodoxy.  

Third, the new jurisprudence of dignity is unlimited in principle and will encourage additional claims to redefine marriage and other long-established institutions.

Fourth, the right of all Americans to engage in democratic deliberation, and ultimately self-government, will be decisively undermined.

Any decision that brings about such evils would be questionable. One lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States....

https://americanprinciplesproject.o...itutional-resistance-to-obergefell-v-hodges /