Whether you approve or disapprove of same-sex marriage should not dictate your view of the propriety or lack thereof of the Supreme Court’s Obergefell v. Hodges decision, which nullifies state laws restricting marriage to one man and one woman.
Even the briefest examination of the purpose of the Fourteenth Amendment — which the Supreme Court cites as the basis for its decision — reveals that its focus was to complete the work begun by Lincoln’s Emancipation Proclamation. The Amendment strikes down the Supreme Court’s 1857 decision in Dred Scott v. Sanford, which had ruled that Americans descended from African slaves could not be citizens of the United States. Nowhere in the debates over the Amendment do we find that same-sex marriage was ever considered to be a right that state and local officials would thenceforward be prohibited from infringing. In all fifty states at the time, marriage was restricted to one man and one woman.
No matter, say the five of the nine Court Justices who decided to make same-sex marriage a right. Rather than show proper judicial deference to the intentions of the supermajority required to pass the Fourteenth Amendment, five Justices decided that what they boast is their “reasoned judgment” trumps the Constitution — trumps the very document whose supremacy alone justifies the Court’s power to strike down laws. In doing so, the Court has failed in its fundamental responsibility to interpret the Constitution in an honest, nonpartisan manner.
But this is not new: Obergefell is merely the latest example of the Court’s decades-long practice of substituting its will for the clear meaning of the Constitution, in the process depriving the people and their representatives of the self-government by which democracy distinguishes itself from oligarchy and monarchy.
What can be done? In the view of many, only the states now stand between the peoples’ liberties and an increasingly lawless Washington, D.C. Here in my home state of Texas, several measures are underway on this front, all of which take their bearings from the fact that the individual states retain their Constitutional prerogatives under the Tenth Amendment, which cannot be revoked by the Supreme Court.
Just prior to the announcement of the Court’s ruling, Texas Lt. Governor, Dan Patrick, wrote to the state’s Attorney General, Ken Paxton, requesting his legal opinion on how best to protect religious liberty after Obergefell. Specifically, Patrick has asked Paxton whether the state’s new “Pastor Protection Act” would insulate from harassment clerks and their staff should they refuse to validate a same-sex marriage license because it violates their religious beliefs. He also has asked what will now come of a “justice of the peace or a judge” who refuses to “conduct a same-sex wedding ceremony” on the grounds that it violates “sincerely held religious beliefs on marriage.”
The Lt. Governor’s concerns would appear warranted by recent events in Houston, whose mayor issued subpoenas to five pastors last year demanding full transcripts of all sermons as well as any correspondence dealing with homosexuality, gender issues, and the city’s proposed gay-rights ordinance. After an intense public backlash, the mayor withdrew the subpoenas.
In response to Patrick, Paxton delivered his opinion on June 28. He finds that “county clerks and their employees retain religious freedoms that may provide accommodation of their religious objections to issuing same-sex marriage licenses.” He adds that “justices of the peace and judges also may claim that the government forcing them to conduct same-sex wedding ceremonies over their religious objections, particularly when other authorized individuals have no objection to conducting such ceremonies, is not the least restrictive means of furthering any compelling governmental interest in ensuring that such ceremonies occur.”
Also last Friday, Texas Governor Greg Abbott released a statement underscoring the fact that the Texas Religious Freedom Restoration Act “provides that the State, its agencies, its political subdivisions, and municipalities ‘may not substantially burden a person’s free exercise of religion’ absent a showing that doing so is accomplished through ‘the least restrictive means.’” He went on to order all state agencies under his direction to “prioritize compliance” with the First Amendment, with “Article I of the Texas Constitution, and the Texas Religious Freedom Restoration Act” to ensure continued protection of the rights of those “substantially motivated by sincere religious belief.”
Although we cannot know at this time how effective these and other measures will prove to be, what we do know is that the battle lines have been drawn in the Lone Star State. We also know that more lawsuits are in the offing. Going forward, the task that Texas’s highest statewide officers have charted consists first in deciding just how much of the state’s family law still belongs to the state post-Obergefell, and then to construct further protections of Texans’ First Amendment rights in light of what’s likely to come next. What this means is that Abbott, Patrick, and Paxton will be seeking to gird their state for what they expect will be future assaults on individual liberties and state prerogatives.
All this is required because an irresponsible Supreme Court has ignored Lincoln’s warning that freedom cannot be maintained without a profound “reverence for the Constitution.” The Court’s reckless disregard for the Constitution and the rule of law threatens to undermine its own authority — and with it, the constitutional separation of powers on which all our liberties depend. Failing to uphold the people’s right of self-government, Washington, D.C., has abdicated its moral authority. The efforts of states like Texas may have just become, paraphrasing Lincoln, our “last, best hope.”
Thomas K. Lindsay directs the Centers for Tenth Amendment Action and Higher Education at the Texas Public Policy Foundation and is editor of SeeThruEdu.com. He was deputy chairman of the National Endowment for the Humanities under George W. Bush.