Many see the new putative constitutional right to same-sex “marriage” and the developments leading up to it as a result of a crisis of culture. It is that, to be sure, but it is also a result of a crisis of leadership. This has become further apparent in the aftermath of the Supreme Court’s Obergefell v. Hodges decision and, as I have stated in this column before, national leadership—at least after the dark night of the Obama era—must play a crucial role in resisting and overthrowing it.
The political branches—Congress and the president—for the most part historically have not understood their role vis-á-vis the judiciary and have abdicated their constitutional responsibilities. They need only look back to Federalist 78, which says the legislative controls the purse and the executive the sword, with the implication they can use those powers to stop the judiciary from becoming abusive. They should recall what Andrew Jackson said to Chief Justice Marshall and the Court in the Cherokee Indian Cases: “John Marshall has made a decision, now let John Marshall enforce it.” He couldn’t and it wasn’t.
It is not surprising that national Democratic politicians lauded the Obergefell decision to a man. To the Republican presidential candidates—almost half of them—who have said it should be accepted as settled law or indicated that it shouldn’t be challenged, I respond that they should look to what their party’s first president, Abraham Lincoln, said after Dred Scott: A decision of the Court binds only the parties before it and does not tie the hands of the political branches for all time. They are free to legislate otherwise if for no other reason than to force the Court to reconsider. Lincoln also refused to carry out Chief Justice Taney’s habeas corpus order in Ex parte Merryman.
Orthodox. Faithful. Free.
Sign up to get Crisis articles delivered to your inbox daily
All the Republican presidential candidates should be asked if they commit themselves to refusing to enforce Obergefell on reluctant states—in other words, using their rightful power to restrain a renegade Court. If they cannot answer “yes,” then they should not be supported. The usual stance of expressing disagreement with unconstitutional Supreme Court decisions followed by complete inaction is no longer acceptable. Presidential non-enforcement is, I believe, the most reliable way to thwart the Court’s unconstitutional decisions.
Nor is it enough for them to say they will make better Supreme Court appointments. Republican presidents have usually not even followed through with that. Too often their appointees (like Anthony Kennedy) end up as enablers or even spear-headers of the cause of a cultural revolution. Moreover, they cannot count on the opportunity to make enough appointments to change the Court.
To call for a constitutional amendment to overturn a decision is as good as saying nothing. It has only happened a couple of times in American history, will go as far with same-sex “marriage” as it has with abortion, and in any event is a tacit admission that the Court’s distorted understanding of the Constitution was actually correct. All it does is provide a leaf of political cover for a politician.
Recall that FDR’s proposed “court-packing” plan—even if it never came off—had the effect of changing the direction of the Court. Presidential initiative to oppose the Court sent a message. If the leaders of major institutions of U.S. society (including perhaps many Catholic bishops over the years) share the responsibility for our cultural turmoil because they went along with or insufficiently challenged destructive trends, right-thinking political leaders unwilling to do more than raise rhetorical objections when the Court has sought to impose them bear part of the blame. Further, this typical supine response by the political branches, along with their ongoing cession of power to the (also) unelected federal bureaucracy—the Democrats do this to advance an ideological agenda that couldn’t be easily legislatively enacted and the Republicans because of a lack of political savvy and courage—has advanced a quiet political revolution in America. It has been a major cause of the decline of the American democratic republic fashioned by our Framers.
Not only have presidents failed to stand up to the Court, but Congress has repeatedly failed to utilize its rightful constitutional prerogatives with regard to it. It has not changed the number of Justices since the nineteenth century (that was the aim of FDR’s court-packing plan), or stripped the Court of its appellate jurisdiction over different subjects, or used the power of the purse to put pressure on the Court when it has acted abusively. While for sure they sometimes go along with the Court to advance short-term political goals, the political branches have also bought into the mysticism of a judicial infallibility when it comes to the Constitution and implicitly swallowed the dangerous proposition that the Constitution equals what the Court says it is.
There was not even much pushback from the governors or attorneys general of the states who opposed the Obergefell decision (there was some resistance from Texas, Louisiana, and Mississippi). Keeping in mind that the Court’s decisions bind only the parties before it—and, as stated, even then are not self-enforcing—those officials could simply have refused to recognize the decision as precedential and forced the homosexualists into more litigation respecting their states. If the governor of at least one of the states in the Sixth Circuit, where Obergefell came from, would have petitioned the Court for a rehearing and then joined, say, fifteen or more other opposing state governors to announce firmly that they were refusing to carry out the Court’s ruling in their states it could have gotten the ball rolling. With resistance growing and the issue coming back to the Court again, it might have motivated Chief Justice Roberts—who issued one of the stinging dissenting opinions—to sit down with the swing-voter Kennedy (there has been commentary about the dynamic between the two of them within the Court) and prod him to reconsider, since the Court’s prestige—a main concern of Roberts’—would now be on the line. This could have been something like “the switch in time that saved nine” in 1937 when another Roberts, Justice Owen Roberts, began to change his votes to uphold New Deal legislation after the abortive court-packing plan.
If that didn’t happen, the Court likely would have become a main national issue in the presidential campaign, like it was in a much less dramatic way in 1968, and this might have helped to propel forward a Republican candidate willing to use executive power as it should be used to resist the Court. By the time all these new legal challenges would have sorted themselves out and if the Court still refused to retreat, perhaps such a candidate could have been elected who would throw down the gauntlet and refuse to enforce the Obergefell precedent. That likely would have consigned it to the dustbin of history. This stance could have been undertaken at minimal political cost to such a group of opposing governors. The people in their states would not have risen up on behalf of the “great cause” of same-sex “marriage.” Despite the polls, the popular support for same-sex “marriage” is an inch deep. As it was, though, opposing state governors couldn’t even bring themselves to this level of resistance—to say nothing of digging in their heels in a more confrontational way to outright refuse to comply for the sake of upholding the Constitution.
There is no doubt that the Court has continued to abuse its power because high-ranking political authorities in the country, when not encouraging it to advance their own agendas or to give them political cover, have scarcely opposed it. The historical record shows that when there is serious resistance (especially by presidents)—as with Jackson, Lincoln, and FDR—the Court makes a retreat and learns a lesson for an extended period of time.
The abdication of sound political leadership has led to judicial outrages like Obergefell. Courageous leadership—but leadership that should be expected and at the national level involves the exercise of legitimate prerogatives—is what’s needed now, especially as we look ahead to the 2016 election, to reverse them.