• Did Obergefell Automatically Become the ‘Law of the Land’?

    Defending Marriage Staff - July 13, 2016

    Editor’s Note: The text of this article was taken from a court opinion authored by Alabama Chief Justice Roy Moore, in which he addressed the effect of Obergefell v. Hodges on the courts of Alabama. You can read the opinion in it’s entirety here.


    Does an opinion of the United States Supreme Court, like Obergefell, which blatantly affronts the Constitution, automatically become the “rule of law” and the “law of the land?” Sir William Blackstone’s Commentaries on the Laws of England became the “manual of almost every student of law in the United States”1 during this nation’s formative years. Blackstone stated that “the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law.” 1 Commentaries *71. Blackstone understood that judges may make mistakes, but in Obergefell, according to the forceful dissents, the majority did not merely make a mistake of law, but instead judged not by the law, but by their own will. As Alexander Hamilton stated: “[I]f [the courts] should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” The Federalist No. 78, at 526.

    Article VI, ¶ 2, of the United States Constitution defines “the supreme law of the land.”

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or the Laws of any State to the Contrary notwithstanding.”

    By the plain language of Article VI, state judges are bound to obedience to the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, not to the opinions of the United States Supreme Court.2 Justice Joseph Story stated: “In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws.” Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842), overruled by Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

    Alexander Hamilton, surely an authority on the Constitution, responding to arguments that the Supremacy Clause would allow the new national government to trample on the rights of the states, put the matter very plainly: “If a number of political societies enter into a larger political society,” he wrote, “the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed.” The Federalist No. 33, at 207 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (emphasis added). But if those powers were abused, the corresponding laws were not supreme.

    “But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such.”

    Id. Hamilton emphasized: “It will not, I presume, have escaped observation, that [the Supremacy Clause] expressly confines this supremacy to laws made pursuant to the constitution ….” Id. Thus, in the plainest terms and employing emphasis, Hamilton declared that acts of the federal government that invade the reserved rights of the states are “acts of usurpation” that deserve to be treated as such. Such acts “would not be the supreme law of the land, but an usurpation of power not granted by the Constitution.” The Federalist No. 33, at 208.

    The Supremacy Clause, quite obviously, by this chain of reasoning, does not give the United States Supreme Court or any other agency of the federal government the authority to make its every declaration by that very fact the supreme law of the land. If the Court’s edicts do not arise from powers delegated to the federal government in the Constitution, they are to be treated not as the supreme law of the land but as mere usurpation. Hamilton offered an example of an invasion of the reserved powers of the states that is very close to the pretense of authority set forth in the opinion of the Obergefell majority.

    “Suppose by some forced constructions of its authority (which indeed cannot easily be imagined) the Federal Legislature should attempt to vary the law of descent in any State; would it not be evident that in making such an attempt it had exceeded its jurisdiction and infringed upon that of the State?”

    The Federalist No. 33, at 206. The laws of inheritance are inseparable from those laws that define the family and in particular the marital relationship. Writing in 1788, over two centuries before Obergefell, Hamilton understandably could not easily imagine the “forced constructions” of federal authority in that case that altered the very definition of marriage. But his example from the law of descent, intended to illustrate an absurdity, makes it clear that Obergefell is an act of usurpation that “will deserve to be treated as such.”

    Nevertheless, so as not to be misunderstood, I emphasize that judges are ordinarily obligated to regard the opinions of the high court as valid precedent that should be followed. Blackstone eloquently stated the general rule that judges are to follow precedent:

    “For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, has now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine not according to his own private judgments, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.”

    1 Commentaries *69. But he also stated a vital exception to that rule.

    Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law ….”

    Id. *69-70 (some emphasis added). Thus, if precedents are “manifestly absurd or unjust,” “contrary to reason,” or “contrary to the divine law,” they are not to be followed.

    Applying Blackstone’s analysis, which is compatible with that of Hamilton, one must conclude that the Obergefell opinion is manifestly absurd and unjust, as demonstrated convincingly by the four dissenting Justices in Obergefell and the writings of two Justices of the Louisiana Supreme Court in Costanza. Basing its opinion upon a supposed fundamental right that has no history or tradition in our country,3 the opinion of the Obergefell majority is “contrary to reason” as well as “contrary to the divine law.” See Murphy v. Ramsey, 114 U.S. at 45 (defining “the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony” (emphasis added)); Smith v. Smith, 141 Ala. 590, 592, 37 So. 638, 638 (1904) (describing marriage as a “sacred relation”); Goodrich v. Goodrich, 44 Ala. 670, 675 (1870) (quoting a treatise for the proposition that “’”[t]he relation of marriage is founded on the will of God, and the nature of man”’” (quoted in API, ___ So. 3d at ___)).4 The Obergefell opinion, being manifestly absurd and unjust and contrary to reason and divine law, is not entitled to precedential value.



    1. James Iredell’s Charge to the Grand Jury, Case of Fries, 9 Fed. Cas. 826, no. 5, 126 (C.C.D. Pa. 1799). Iredell served as a Justice of the United States Supreme Court from 1790 to 1799.
    2. “Senators and Representatives [of the United States], and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation to support this Constitution.” U.S. Const., art. VI, ¶ 3 (emphasis added).
    3. See Windsor v. United States, 699 F.3d 169, 188 (2d Cir. 2012), aff’d, 570 U.S. ___, 133 S. Ct. 2675 (2013) (noting that “same-sex marriage is unknown to history and tradition”).
    4. “Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.” Genesis 2:24. “Marriage is honourable in all, and the bed undefiled: but whoremongers and adulterers God will judge.” Hebrews 13:4.

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