Kim Davis isn’t the only one refusing to accept the Supreme Court’s ruling on gay marriage, a law that asks her to ignore her religious convictions at work. Kim Davis, by her actions and bravery, has inspired others to join her in taking a stand against a law they believe is anti-constitutional. And these others are powerful.
Legal scholars across the country are encouraging federal and state officials to treat the Supreme Court’s gay marriage law as “illegitimate” and “unconstitutional.” Institutions involved in this protest include Boston College, Washington & Lee, Vanderbilt, University of Texas, Kansas State, Villanova, Notre Dane, Hillsdale, University of Nebraska, and Regent University.
The American Principles Project of Princeton states: “We call on all federal and state officeholders: To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case. To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions. To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons. To open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evidence in Obergefell.”
This group of top lawyers was founded by Robert George, who believes the American people must uphold the Constitution even above what the Supreme Court decides. He writes that the group’s goals are not extreme and that the American Principles Project remains respectful of the law. The organization often quotes Abraham Lincoln, when he said in his original inaugural address that trusting solely in the Supreme Court would mean “people will have ceased to be their own rulers.”
These lawyers argue that the Supreme Court failed to provide “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.” They also note that the four dissenting judges didn’t just disagree with the ruling; they feared the consequences. For example, Justice Scalia called the decision “a naked judicial claim to legislative…power; a claim fundamentally at odds with our system of government.” Even worse, those in support of traditional marriage would be targeted and vilified.
Alabama, a state that permanently forbade same sex marriage just before the Supreme Court’s controversial 5-4 ruling in June, has still not reacted to the Court’s decision.
Meanwhile, probate judges in at least 14 Alabama counties refuse to issue marriage licenses to gay couples. “As a probate judge, I am currently compelled, and I believe wrongfully, to issue federally-created same-sex marriage licenses or face an onerous federal civil rights action,” said John Enslen, a judge in Elmore County.
“If a bare majority of Justices can invent a new right and impose that right on the rest of the country,” wrote Justice Alito, “the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.”
John Eidsmoe of Moral Law states, “We continue to believe that marriage is an issue that has been properly reserved to the states by the 10th Amendment and that as a result, the U.S. Supreme Court does not have a right to dictate this policy to Alabama or Mississippi or any other state.”
Alabama’s high court continues to mull over whether to rule that the state choose to follow its own constitution or the Supreme Court’s decision. Knowing what can happen should they continue to ignore the law, however, worried Alabama clerks beg the state to make up its mind.