For supporters of “same-sex marriage,” an unsettling reality is dawning on North Dakota state lawmakers in the aftermath of the U.S. Supreme Court’s marriage decision, which dissenting justices described as unconnected to the Constitution.
Nothing in the Constitution allows the five-lawyer majority to overturn or modify state, county and city laws, regulations and policies.
Any changes depend upon compliant elected officials deciding to meet the demands of the high court in Washington.
It may not happen, and it may not even be possible.
In North Dakota, reported the Dickinson Press, state Sen. David Hogue, a Minot Republican who is chairman of the Legislature’s interim Judiciary Committee, said he “doesn’t intend to propose legislation to amend the law, leaving it up to the committee’s 20 other members to decide whether to do so.”
North Dakota lawmakers already have identified 70 sections of the state’s laws that would have to be modified to meet the “gay marriage” requirement.
In fact, the committee is still deciding whether or not to change the state constitution and update state law to reflect the U.S. Supreme Court’s declaration that same-sex couples have the right to marry, reported KVRR-TV in Fargo.
The committee, according to the station, was unable to determine “whether changes should be adopted or the law left alone as a statement.”
If the lawmakers end up defying the redefinition of marriage established by Justices Kennedy, Kagan, Ginsburg, Sotomayor and Breyer, it would be just the latest iteration of an insurrection developing across the nation.
But even if every state lawmaker, city council member and county commissioner wanted to comply, it could take years, if it ever could be accomplished.
It’s because the precedent of a family as a man and a wife and children has been a bedrock in society for millennia.
That means insurance practices, benefit and vacation policies, licensing requirements, permitting processes, registration formats, incorporation demands and hundreds of other bureaucratic aspects of public life include references to “husband” and “wife.”
‘Shredding’ domestic law
Mat Staver is chairman of Liberty Counsel, which continues to represent County Clerk Kim Davis. She was jailed last year by U.S. District Judge David Bunning for refusing to issue licenses to same-sex couples after the Supreme Court decision, even though the judge’s demand violated state law.
Lawmakers in Kentucky had pleaded with the judge to be given time to make adjustments in the law so that Davis would not be in the position of violating state law or the judge’s order. Bunning refused, sending Davis off to jail without notice.
Staver told WND that the “entire statutory” construct of the nation will have to be re-created to address every situation.
The mandate, he said, “pretty much shreds domestic law,” leaving behind “complete chaos.”
Every practice, procedure and requirement of the nation’s top-to-bottom statutes and codes will have to be revisited, re-evaluated and revamped, he said.
At just the state level, each change could require staff-level identification of the issue to be addressed, then a proposal to the legislature followed by committee action, possibly including hearings, and eventually action by the full legislature and the governor.
Then there are special districts, counties, cities, boroughs, school districts, highway districts, water districts, coastal beach districts, forest and conservation districts and many other jurisdictions.
“It is a massive undertaking,” Staver said.
At the state level, he estimated it could take “years” to accomplish, and that’s assuming a “concerted effort.”
The Dickinson Press report said the 70 sections in North Dakota law already identified cover “everything from divorces and adoption to fishing and frog licenses.”
Hogue said there definitely is a group wanting to leave the laws alone to make a political statement.
“They want to sort of resist through not making any changes,” he told the paper.
After all, the lawmakers want to represent the voters, who voted by a massive majority of about 70 percent to 30 percent to require marriages in the state to be one man and one woman prior to the U.S. Supreme Court decision.
Hogue said he won’t pursue it himself, but he thinks something will have to be done eventually.
“My own view is I don’t like the ruling, but I accept it as the law of the land. I have no doubt that it will at some point cause problems for somebody in the state. There are simply too many references to husband and wife.”
State Rep. Lawrence Klein, a Republican from Bismarck, said there’s another consideration.
“We can’t just go through and change everything,” he said, “because some of those definitions are related to biology.”
Strategy to fight
WND reported only a week ago on a strategy to fight the “gay marriage” mandate.
A document obtained by WND from Salt & Light Global, which works to “educate and equip Christians to engage the culture via citizen statesmanship and selfless service,” presents ways that individuals, groups and churches can oppose the 2015 decision.
WND reported last week when Michigan lawyer David A. Kallman of the Great Lakes Justice Center, which coordinates efforts with Salt & Light, pointed out that the opinion created a new protection for self-identity.
The opinion, Kallman explained to WND, “links to our rights as enunciated in the Bill of Rights. So if you find your identity in Christ … we would argue, Justice Kennedy has created another layer of protection.”
Two experts with the Great Lakes Justice Center, William Wagner and John S. Kane, wrote: “To be sure, the Obergefell decision stated that for some individuals ‘personal identity’ may come from a person’s intimate sexual orientation and the court then ruled accordingly. The court’s ruling clearly comprehends that an individual’s ‘personal identity’ could come from the person’s intimate religious faith orientation, i.e., his or her ‘beliefs.'”
That means, they explained, that the Supreme Court “determined that this new fundamental constitutional liberty right of personal identity is found in, and protected by, the Due Process and Equal Protection Clauses of the 14th Amendment to the United States Constitution.”
The organization said the church “must immediately try to reverse the course these unelected judges set for our nation – or face a century or more of certain oppression.”
“Our proposed strategy to overturn the Supreme Court’s ruling includes a strategic combination of constitutional statesmanship, tactical litigation, protective legal counseling, active Christian citizenship, and prayer.”
For example, the U.S. Constitution in Article V says the American people could “explicitly remove the new fundamental right.” Article III says Congress could overturn the decision, and Article I gives Congress the power of the purse over court decisions as well as impeachment procedures for the judges involved.
Christians also can petition states to not enforce it.
“The dissenting justices eloquently explained how the majority lacked any constitutional authority to act in the way it did – and that its ruling is therefore illegitimate,” the report said. “State governors and state attorneys general should not treat an illegitimate ruling entered without constitutional authority as the rule of law. Moreover, to do so in this case surrenders the sovereignty of the state to five unelected judges imposing their own personal political agenda. Here these justices, politically accountable to no one, replaced, for example, Michigan’s constitutional policy, enacted by the people of Michigan, with their own personal policy preferences. ”
High court told it’s wrong
Other levels of resistance already have developed, from a state Supreme Court in Alabama to resolutions in several counties to advice from legal scholars to even a federal judge in Puerto Rico who said, essentially, “Not happening here.”
The San Juan judge, Juan M. Perez-Gimenez, said the U.S. Supreme “had settled the meaning of two clauses of the Fourteenth Amendment – the Due Process and Equal Protection Clauses – as they applied to same-sex marriages,” reported Lyle Denniston for SCOTUSblog.com.
“But he said the decision only applied to state governments, and Puerto Rico does not have that status.”
Denniston explained the judge found in previous cases that Puerto Rico had been treated as an “unincorporated territory” not under the authority of the 14th Amendment.
The finding put the judge in conflict with the U.S. Court of Appeals for the First Circuit, which struck down same-sex marriage in Puerto Rico.
Perez-Gimenez previously made the same ruling, then the First Circuit acted, but the case ended up before Perez-Gimenez again, and he upheld the ban on different grounds.
The judge began his decision with: “For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the union, than that which seeks to establish it on the basis of 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; the sure foundation of all that is stable and noble in our civilization; the best guarant[ee] of that reverent morality which is the source of all beneficent progress in social and political improvement.”
He ruled: “The court concludes that the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico. Thus, the court declines to hold that the marriage ban codified in Article 68 of the Civil Code violates the Due Process and the Equal Protection Clauses of the Fourteenth Amendment by denying same-sex couples in Puerto Rico the right to marry or to have marriages validly performed in another jurisdiction given full recognition.”
Just days earlier, an endorsement by the American Family Association of an Alabama Supreme Court order strongly affirmed its own rejection of the U.S. Supreme Court’s decision.
“Late last week the Alabama Supreme Court told the U.S. Supreme Court that they, in fact, were the ones who were wrong and that the Alabama Marriage Protection Amendment is valid. The American Family Association of Pennsylvania (AFA of PA) applauds that decision,” the group said.
WND reported the ruling by Alabama’s Supreme Court criticized the U.S. Supreme Court’s creation of same-sex marriage as “lawless” and left undisturbed its 2015 determination that the state’s Sanctity of Marriage Amendment and Marriage Protection Act are constitutional and binding.
Chief Justice Roy Moore wrote in an order that his court “dismisses all pending motions and petitions and issues the certificate of judgment in this case.”
“That action does not disturb the existing March orders in this case or the court’s holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Therefore, and for the reasons stated below, I concur with the order.”
Diane Gramley, president of the AFA of PA, said, “The U.S. Supreme Court had no jurisdiction to redefine marriage in either Alabama or the other states that had passed Marriage Protection Amendments or Defense of Marriage Acts, such as Pennsylvania. They overstepped their constitutional authority.”
The organization pointed out that the U.S. Constitution and the Alabama Constitution provide that the legislature, not the courts, makes law.
She said the marriage decision “by five attorneys on the U.S. Supreme Court last June was illegitimate.”
“They had no constitutional authority to hand down that decision and, additionally, two of those five – [Ruth] Ginsburg and [Elena] Kagan – had officiated at same-sex ‘marriage’ ceremonies and should have recused themselves, but refused to,” Gramley said.
“The AFA of PA is in hopes other states will see the light and recognize the Supreme Court’s unlawful ruling for what it is.”
WND reported Ginsburg has performed same-sex ceremonies and made public statements in advocacy. Justice Elena Kagan also has performed same-sex weddings and promoted “gay” rights at Harvard’s law school while she was at its helm.
The Foundation for Moral Law asked the justices to excuse themselves from the case, but they refused to acknowledge the request. The foundation argued that Canon 3A(6) of the Code of Conduct for United States Judges provides: “A judge should not make public comment on the merits of a matter pending or impending in any court.” 28 U.S.C. sec 455(a) mandates that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
In his order, Moore called the Obergefell decision completely without constitutional authority, a usurpation of state sovereignty and an effort to impose the will of “five lawyers,” as Chief Justice Roberts dubbed the majority, on the American people.
“Indeed, the Obergefell majority even presumes to override the Federal Rules of Civil Procedure, which limit the applicability of injunctions to parties, their agents, and those acting in concert with them,” he wrote in a scathing opinion attached to the order,” Moore said.
Moore wrote that the U.S. Supreme Court marriage ruling is “like Dred Scott and Roe v. Wade that preceded it, is an immoral, unconstitutional, and tyrannical opinion.”
‘Not a judgment’
Critics of the decision have pointed to a Wisconsin case over slavery as precedent for refusing to abide.
In that historic case, the Wisconsin Supreme Court refused to follow the U.S. Supreme Court opinion in Dred Scott, which “said that blacks were not entitled to full protection as citizens.”
The U.S. Supreme Court overturned the Wisconsin court, but the state, in an “act of defiance,” never filed the mandates that required people to return fugitive slaves to their owners.
A justice writing for the Wisconsin said, “I believe most sincerely and solemnly that the last hope of free, representative and responsible government rests upon the state sovereignties and fidelity of state officers to their double allegiance, to the state and federal government; and so believe, I cannot hesitate in performing a clear, an indispensable duty.”
The court also declared the federal law unconstitutional.
The Wisconsin court said, “Here is a distinct recognition of the power and duty of state judges, not to be bound by all the acts of Congress, or by the judgments and decrees of the supreme federal court, or by their interpretation of the constitution and acts of congress, but by ‘this constitution’ ‘and the laws made in pursuance thereof.'”
Simply put, the Wisconsin court said a Supreme Court opinion that wasn’t founded in the Constitution was not a judgment.
Biblical and historic definition
Among the critics of the U.S. Supreme Court’s marriage decision is Rabbi Jonathan Cahn, author of the New York Times bestseller “The Harbinger” and the inspiration behind the “Isaiah 9:10 Judgment” movie, who challenged the Supreme Court’s assumption that it has the authority to redefine marriage.
At a prayer event in Washington, he said: “The justices of the Supreme Court took up their seats [in a hearing] on whether they should strike down the biblical and historic definition of marriage. That the event should even take place is a sign this is America of [George] Washington’s warning … a nation at war against its own foundation.”
Washington warned the smiles of heaven can never be expected on a nation “that disregards the eternal rules of order and right which heaven itself hath ordained.”
“Justices, can you judge the ways of God? There is another court and there is another judge, where all men and all judges will give account,” he warned.
“If a nation’s high court should pass judgment on the Almighty, should you then be surprised God will pass judgment on the court and that nation? We are doing that which Israel did on the altars of Baal,” he said.
See Jonathan’s Cahn’s message at Washington: Man of Prayer event at the Capitol.
The United States Conference of Catholic Bishops called “same-sex marriage” an “intrinsic evil.”
And officials from several counties in Tennessee have adopted statements opposing the Supreme Court.
WND also reported when dozens of top legal scholars from the likes of Washington & Lee, Boston College, Kansas State, Notre Dame, University of Texas, Villanova, Vanderbilt, Hillsdale, University of Nebraska, Catholic University and Regent University issued a statement encouraging all state and federal officials to treat the Supreme Court’s recent creation of “same-sex marriage” as “anti-constitutional and illegitimate.”
“It cannot … be taken to have settled the law of the United States,” said the statement from the American Principles Project.
“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.”
The same fight has erupted, also, in the United Kingdom.
There, what appeared to be developing as a hands-down victory for homosexuals against a baking company that refused to promoted homosexuality all of a sudden was delayed when Northern Ireland’s attorney general asked for permission to argue in the case that the so-called nondiscrimination laws actually violate the protections granted to religion in the European Convention on Human Rights.
A hearing is scheduled for May on that question.