Thursday, September 17, 2015

Obergefell is Law

Some dear friends have been going around claiming that Obergefell(fn1) isn't the law of the land. These dear friends are wrong.

But the Constitution vests all legislative authority in the Congress!

Yes all federal legislative authority is Congressional, but legislation isn't the only kind of law. There are also laws that come from the executive branch (e.g. regulations) and laws that come from the judicial branch (e.g. judicial precedent). There are even treaties, which the President enters into with the consent of the Senate.

But the Founders never intended for judicial precedent to be law!

Actually, the founders accepted the idea of judicial precedent as law. They all had as their framework the English "common law" system, in which judicial precedent was treated as law. The Constitution doesn't oppose this framework. In the historical context in which the Constitution was written, it was assumed that judicial precedent would be treated as law.

But this is Legislating from the Bench!

What you really mean is, you don't agree with the justices' decision. You think they were wrong to conclude as they did. That doesn't make this legislation from the bench. It's just judicial precedent.

But it's just an Opinion, look it says "Opinion" right on it!

This has to be the most ignorant (or deceptive) objection I've heard. Yes, judicial decision is typically called an "opinion." That doesn't mean it's simply some kind of personal opinion that lacks the force of law. The majority opinion of the Supreme Court is legal precedent that controls - lower courts must follow it.

But Kentucky's law is different

When Federal law and Kentucky state law come into conflict, Federal law wins (US Constitution, Article VI).

But Article VI doesn't mention judicial precedent!

Even if that mattered, it mentions the US Constitution and - according to Obergefell - the US Constitution conflicts with some state laws.

Doctrine of the Lesser Magistrate!

Suffice to say that this doctrine is one that relates to rebellion by the lesser magistrate against the greater magistrate. When or whether such rebellion may be Scripturally warranted is a different topic, but the point is that we are no longer talking about whether Obergefell is law, but whether the lesser magistrate is going to obey that law or rebel against that law. In principle, there are times when lesser magistrates ought to rebel against the law, but it is still rebellion against the law. Those who rebel against the de facto authorities, including an unjust greater magistrate, should fully expect to reap the consequences of death, imprisonment, loss of property, and so on.

But #datnotpostmil!

Just because we know that God's kingdom will continue to advance doesn't mean we know how precisely that will come to be. Perhaps it will be a reformation in this land. Perhaps it will be through God bringing just judgment in this land. I hope it will be the former, but the more bad laws we have, the more we invite the latter.

But then what can we do?

Within the law, we can remove Supreme Court justices for bad behavior and install those who will overturn bad precedent. Alternatively, we can amend the Constitution to overcome bad judicial precedent regarding the Constitution.

More significantly, we can proclaim the truth that is revealed in Scriptures to those around us. The Word of God is more powerful than you think, no matter how powerful you think it is. It's ok for us to use the political process, but that's not the primary way by which #datpostmil will come about.


FN1: For those living under a rock, Obergefell held: "The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State."


michael said...


fairly straightforward legal arguments here.

I'm going through the legal history as put forth in the Syllabus OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. . Here is something within that Syllabus I want to note and take issue with.

The Judge writes: // Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness.//

That for me is a fundamental flaw in this historical accounting of what precedes this ruling. Homosexuality was not considered an illness until the Psychiatry field began bending on what homosexuality was. Slowly over time Psychiatrists changed the definition of homosexuality to become a medical condition. As we know the Bible does not teach homosexuality as an illness but a sin of the fallen human nature we were all born with.

Reformed Apologist said...


If there is something that can be rightly called "legislating from the bench," what disqualifies something from beng that? I agree that it can't be that one merely disagrees with the judicial decision or even that it sets a "new" precedent that was not recognized as a reasonable application of the prior existing law. However. those sorts of things can surely accompany legislating from the bench, can't they? If so, I don't see how pointing to those sorts of things refutes the claim that such has indeed occurred. Thoughts?

geoffrobinson said...

A response to you.

Turretinfan said...

Geoff - thanks for the heads up! I don't think Steve's point disputes the central thesis of my post. Definitely some good food for thought, though!

Turretinfan said...

Reformed Apologist:

I think my point was that the expression "legislating from the bench" is just a pejorative term for a category of decisions that one doesn't like.


Reformed Apologist said...

Thanks for the clarification, TF.

Hoping your well.