Scholars call for resistance to Obergefell decision

The Supreme Court decision of this past June, Obergefell v. Hodges, prompted 71 of the nation’s scholars to craft a response detailing the Court’s error. The statement encouraged a response from legislators and the American people in light of the decision to redefine marriage.

These scholars criticized the Court for disregarding the Constitution and past precedent in the recent decision, which made it illegal for states to define marriage as a union between one man and one woman.

Robert P. George, McCormick Professor of Jurisprudence and Professor of Politics at Princeton University and a signatory of the statement, asserted there is no legal basis for such a redefinition.

“The opinion for the majority in Obergefell does not even make an effort to show that there is a basis in the text, logic, structure, or historical understanding of the Constitution for requiring states to recognize same-sex partnerships as ‘marriages.’ That’s not surprising, because there clearly isn’t one,” George told the Rover.

He went on to explain that Justice Anthony Kennedy used the Due Process Clause of the Fourteenth Amendment, which states, “nor shall any State deprive any person of life, liberty, or property without due process of law” to impose this view of marriage on the states.

According to the statement, the Court employed “a new and ill-defined jurisprudence of identity” that misconstrued the notion of human dignity. Kennedy’s use of the Due Process Clause, George claimed, implies that the government is responsible for conferring dignity on individuals.

“He ‘interprets’ these words as authorizing the judiciary to intervene in the democratic process to displace decisions of the people and their elected representatives when the marriage laws they enact fail to confer upon same-sex relationships the dignity that the persons who opt for such relationships deserve,” George argued. “This is an abuse of the Due Process clause and of the concept of human dignity itself.”

The statement summarizes the critiques of the four dissenting opinions, all of which conclude that the majority decision is incompatible with the American system of government and the idea of liberty nested within it. Rather than expanding the benefits of liberty to a wider range of people, the decision limits the freedom of those who oppose the redefinition marriage and distorts liberty into “an entitlement to government action,” according to the statement.

If this decision is accepted without resistance, argued the scholars, the consequences could be catastrophic. Society no longer can uphold the norm of marriage between one man and one woman, “the only type of human relationship that every society must cultivate for its perpetuation,” the scholars assert. In fact, they predict, those who do hold this view will be alienated and denied certain rights in order to perpetuate the redefined view of marriage.

In addition, this decision will leave open or even encourage the possibility to further redefine marriage and other institutions in the future, as well as undermine democratic deliberation.

George summarized the dissenting opinions. “The conclusion to be drawn is that Obergefell is an anti-constitutional and therefore illegitimate opinion. It is not merely a mistake. It is a usurpation of the authority of the democratically constituted people to govern themselves. As such, it is an assault against the very principle of Republican government,” he told the Rover.

The statement calls on other branches of government and the American people to treat the decision as illegitimate because of its lack of reliance on the Constitution and principles of American government.

“We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court,” the statement urges.

Christopher Wolfe, Professor of Politics at the University of Dallas and another signatory of the statement, explained that throughout American history, the Supreme Court has never had the absolute authority to make a final determination on a political issue.

“I don’t think anybody in the American Founding, from one end of the political spectrum to the other, would have thought that the Supreme Court simply had the final say on constitutional questions,” Wolfe told the Rover.

Citing James Madison and Abraham Lincoln, the statement demonstrates the lack of authority of five unelected justices to decisively determine a fundamental question for the entire nation.

“Lincoln got it just right: the Supreme Court’s decisions must be obeyed, and the interpretations on which they are based ordinarily settle the meaning of the Constitution,” Wolfe continued. “But ‘ordinarily’ can’t mean ‘always,’ or we will have given up self-government.”

Using the example of Lincoln’s resistance to the Dred Scott v. Sandford decision, Wolfe emphasized that respect for the rule of law could mean resistance to a particular opinion of the Court.

“Just as Lincoln refused to accept the constitutional interpretation of Dred Scott as authoritative, so we refuse to accept Obergefell as authoritative, because it is utterly without roots in the Constitution, and is simply a raw exercise of judicial will. We believe in the rule of law, but we deny that a lawless Supreme Court decision is sacrosanct, or a binding part of the rule of law in our nation,” he concluded.

George espoused a similar view, explaining that this decision is an misuse of the power granted to the judiciary.

“The attitude that public officials and others should adopt toward it is precisely the attitude President Abraham Lincoln adopted towards the Dred Scott decision. It is not ‘the law of the land.’ It is an abuse of judicial power,” he told the Rover.

The statement concludes by warning American citizens that submitting to this ruling would be handing over the power of self-government to the unelected justices on the Supreme Court, which “is something that no citizen or statesman who wishes to sustain the great experiment in ordered liberty bequeathed to us by our Founding Fathers should be willing to do.”

Hailey Vrdolyak is a senior studying political science and theology. She is proud to say that has a flip phone. To see this rare piece of antique machinery email her at