Resistance Is Not Futile—It Is Necessary, Part 2

The Present Challenge
Resisting Obergefell Respects the Rule of Law

Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong which will be imposed on them.
—Frederick Douglass1

Part 1 is available here.

Last time we examined the Supreme Court’s decision in the 1857 Dred Scott case and established that the court ignored the Constitution and overstepped its authority. We remembered the words of abolitionist Frederick Douglass, who pointed to a higher law and exposed the court for exercising arbitrary judgment and imposing its will in a tyrannical manner.

We further recognized how several of Douglass’s statements about Dred Scott also address Obergefell v. Hodges, the recent Supreme Court decision that redefines marriage nationwide to include same-sex couples; and we implicitly affirmed that we must act to resist Obergefell for many of the same reasons Douglass and others in his day were compelled to resist Dred Scott. A coalition of more than 60 scholars has released a statement through the American Principles Project showing us the way. You can read their manifesto here.

Let’s review some of the statement’s major points.

The Mess We Are In

The scholars establish early on that the court’s decision in Obergefell ignored the text of the Constitution, the Founder’s original intent, and the court’s own principles of constitutional interpretation to redefine marriage. Moreover, the Supreme Court “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 scholars cite the strong and unsparing statements of the four dissenting justices; then they go on to note four costly consequences Obergefell surely will bring upon America. We summarize these as follows.

First, the ruling not only ignores the unique procreative element in natural marriage, it also falsely legitimizes the dismissal of those who seek to uphold it for the good of society in general and children in particular. As we have discussed previously, the procreative element of a man-woman relationship is central to what marriage is all about: “Only a heterosexual union can produce a baby. Infertile couples certainly do exist, but they do not negate the general rule that when one man and one woman come together and share themselves with each other intimately and sexually, the way is paved for conception, pregnancy, and the eventual arrival of a child.”2 We also observed, “The future of the human race depends on reproducing it so those dying out can be replaced. This can occur only with heterosexual couples.”3 To tilt the debate against those making these arguments, especially without any rational grounds for doing so, is to act in a truly tyrannical manner. This leads us to the second point.

Second, the court’s decision won’t just increase the probability of dismissing adherents of natural marriage; it seeks to shut them down totally by using the legal system to intimidate dissenters and force compliance, even when consciences are violated. We have seen this played out repeatedly in recent years, even before the Supreme Court issued its ruling.

Third, by removing the element of gender from the legal definition of marriage, the court destroyed the legal foundation for keeping any relationship or network of relationships from being legally considered a marriage.

Fourth, usurping the will of the people, the Constitution, cultural tradition, and historical precedent, five justices of the court issued an arbitrary ruling and acted as an absolute authority with no accountability whatsoever.

Continuing, the scholars at the American Principles Project state,

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 the citizens of the United States.

We must not miss significance of this paragraph. A bare majority of the nine justices of the Supreme Court have violated the Constitution of the United States in redefining marriage. Their ruling is therefore illegal and should not be recognized as legitimate or binding.

Quoting presidents James Madison, who is known as the “Father of the Constitution,”4 and Abraham Lincoln, the scholars demonstrate that national statesmen of the past have understood the constitutional limits placed upon the Supreme Court. These same limits apply today but unfortunately are not widely recognized.



These terms are not used, but this essentially completes the “whereas” portion of the document. The remaining text can be considered the “be it resolved” section. Here is a summary of that section.

The Challenge Before Us

The scholars emphasize that just as Madison and Lincoln understood “that the Constitution is not whatever a majority of Supreme Court justices say it is,” they also recognize this reality and remind all public officials that they are sworn to uphold the Constitution, not a Supreme Court ruling. Thus,

  • Obergefell is binding only to the plaintiffs in the case, and federal and state officials should not see it as binding on any other party.
  • Federal and state authorities should affirm the right of the states to define marriage and should encourage state officials uphold those definitions as they perform their duties.
  • Authorities should legally and practically assist those who resist the Obergefell ruling for reasons the Constitution authorizes and protects.
  • Authorities should openly discuss how and why Obergefell must be resisted and should work to reverse this unconstitutional ruling.

In the concluding paragraph, the scholars at the American Principles Project affirm that ordered liberty in the United States of America is threatened when a Supreme Court ruling without legal foundation is treated as settled law. Thus, to truly obey the law of the land and to preserve liberty, public officials and ordinary citizens alike must resist the Supreme Court’s redefinition of marriage. The scholars’ statement declares simply, yet profoundly, “We emphasize that the course of action we are here advocating is neither extreme nor disrespectful of the rule of law.”

We emphasize that the course of action we are here advocating is neither extreme nor disrespectful of the rule of law.

The scholars did not quote Dr. Martin Luther King, but they certainly could have. As you read this quote, keep in mind that many mistakenly believe that in the Obergefell ruling, the Supreme Court settled the marriage debate in this country by establishing same-sex marriage as the law of the land. Not so. According to the Constitution, while the court can interpret law, it cannot create it. Also, a Law exists that is higher than even the Constitution, and that Law remains in force. King said,


There are just laws and there are unjust laws. I would agree with St. Augustine that an unjust law is no law at all…One who breaks an unjust law must do it openly, lovingly…I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.5

In the finest tradition of respect for the law, it is our noble call to resist tyranny and to uphold the true law of the land. May God give us the grace, strength, and courage to so act.

Copyright © 2015 by B. Nathaniel Sullivan. All Rights Reserved.






Statement Calling for Constitutional Resistance to Obergefell v. Hodges