The Doctrine of Lesser Magistrates: Why Federal and State Authorities Ought to Ignore Same-Sex Marriage.

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What should a biblical Christian do when the State commands that which God forbids or forbids that which God commands? Having recently written about principled Christian disobedience (PCCD), we now turn to the doctrine of lesser magistrates for some guidance in this present darkness where, increasingly, good is called “evil,” and evil is called “good.” I humbly submit that we have a duty to obey God rather than man.

Relying on scripture, the protestant reformers developed a political theory to address how Christians may appropriately respond when faced with the tyranny of a rogue emperor or despotic king.  A “lesser magistrate” is a lower government authority, relative to the king or other ultimate authority, charged with guarding the God-given liberties of the people under his care.  The concept here is that the lesser magistrate is imbued with the responsibility and authority to shield citizens by resisting, and when necessary, rebelling against the tyranny of a higher authority.

John Calvin wrote in his Institutes of the Christian Religion that while individual Christians are generally commanded to submit to ruling authorities (See Romans 13:1-6), “popular magistrates” have “been appointed to curb the tyranny of kings”  when higher authority exceeds its limits and issues decrees that are against God’s instructions. The Lutheran Magdeburg Confession of 1550, argued that “subordinate powers” in a state, faced with a scenario where the “supreme power” is working to destroy true religion, may exceed non-cooperation with the supreme power and actually help the faithful to resist.

John Locke, a committed Christian, explicitly wrote in his Two Treatise on Government that the people had a right of revolution as a check on statist tyranny.  Sir William Blackstone, the eminent English jurist, whose Commentaries on the Laws of England were studied by many of our founders including Thomas Jefferson, wrote “Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. No enactment of man can be considered law unless it conforms to the law of God.” As the Declaration of Independence in 1776 expressed it, natural law taught that the people were “endowed by their Creator with certain unalienable Rights” and could alter or abolish government when the State becomes “destructive” of those rights. Thus, the authority of the lesser magistrate (i.e. colonial governments) to resist tyranny and the power of the people themselves to rise up in revolution when their inalienable rights are trampled by despotic supreme rulers, were the twin philosophical foundations that merged in the American Revolution.

And, just when you may think that the spirit of 1776 is dead and buried, some thought leaders have begun to roar like bold lions against the megalomaniacal tyranny of the freedom-pilfering U.S. Supreme Court.  Earlier this month, a document was crafted and signed by more than 60 constitutional attorneys and legal experts, including Robert George (Princeton University), John Eastman (Fowler School of Law, Chapman University),  Jeffrey Ventrella (Alliance Defending Freedom, Sr. Counsel), and Steven D. Smith (University of San Diego School of Law).

Steven Smith, with whom I participated in a panel discussion regarding religious liberty in the public square in 2014 at USD, and the other signatories, confirmed the line of reasoning embodied in the article I wrote last month titled The Constitution is the Law of the Land, Not Same-Sex Marriage.  After confirming that the U.S. Constitution does not give the federal judiciary the power to redefine marriage, the scholars urged government officials to refuse to acknowledge or enforce Obergefell v. Hodges.  In other words, they are urging lesser magistrates to declare Obergefell a legal nullity and stand against the federal court’s constitutionally abusive power grab:

“Any decision…lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.

Therefore….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.”

Last month, Tennessee legislators introduced a bill seeking to nullify Obergefell, declaring that marriage between one man and one woman “remains the law in Tennessee, regardless of any court decision to the contrary. Any court decision purporting to strike down natural marriage, including Obergefell v. Hodges, is unauthoritative, void and of no effect.”  The bill instructs that the state attorney general “shall defend any state or local government official from any lawsuit regarding the official’s recognition of natural marriage.”

By making these courageous stands in the face of strong cultural headwinds, the Tennessee lawmakers and legal scholars do not advocate general legal anarchy; rather they are actually affirming the U.S. Constitution and the rule of law.  They have issued a clarion call to all magistrates, both state and federal, to interpose themselves as a buffer between a lawless U.S. Supreme Court, on one hand, and the states and citizens that Obergefell profoundly negatively impacts, on the other. When Kentucky Clerk Kim Davis refused to same-sex “marriage” licenses, I believe that she was exercising principled Christian Civil Disobedience (PCCD) and was acting in the tradition of the doctrine of lesser magistrates, attempting to shield citizens from Obergefell.

This is critically important because if the Obergefell ruling stands, it will decimate the right of the states and we the people to act democratically to define marriage, and by extension place any meaningful limits on absolutist supreme federal power. And, it destroys the right of individuals and religious organizations to freely live, act, and speak according to the dictates of their conscience.  The right to vote and religious freedom are fundamentally important civil liberties we simply cannot afford to lose in America.

What the Supreme Court marriage ruling means for you

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The long anticipated U.S. Supreme Court ruling, coercively imposing a judicially created same-sex “marriage” (SSM) regime on the good citizens of all 50 states, portends far-reaching and truly ominous implications for our democratic republic. Amidst the morally hollow fanfare of rainbow illuminations and banners, most of these cold-hard realities were either ignored or under-reported. Tragically, the primary victim of the high court’s divisive decision is the Constitution itself (shredded) and with it the rule of law (undermined). In this era of growing moral and legal anarchy, some are asking, “Is the American experiment over?”

Justice Kennedy, joined by Breyer, Ginsberg, Kagan, and Sotomayor, threw the legal equivalent of jet fuel on the already red-hot glowing embers of intolerant anti-Christian sentiments. In doing so, they cemented the specious cultural narrative that, according to the “thinking” of secular-progressive elites, individuals opposing marriage’s radical redefinition, especially Christians, are no better morally speaking than purveyors of Jim Crow or rabid Clansmen—enemies of humanity and enemies of the state.  Whether or not this devilish propaganda is actually true is irrelevant to our enlightened neo-high priests and priestesses. As such, now that our statist black-robed “gods” have spoken, our fellow citizens have “official” permission to tar Bible believers as unenlightened, homophobic bigots.

Righteously angry and powerful dissenting opinions were authored by Chief Justice John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito. As the four dissenting justices point out, theObergefell v. Hodges decision will likely prove to be at least as nationally divisive as Roe v. Wade, and signal a clear and present danger to our democratic republic and the bedrock American principle of religious freedom.  The following points raised by the dissenters are important to understand going forward:

  • Democracy Denied: The votes of millions of Americans desiring to retain the one-man, one-woman definition of marriage, which has successfully served humanity for millennia, were judicially nullified in a shameless illegal power grab by the purportedly superior, enlightened, statist, and decidedly elitist whims of five lawyers. This gang-of-five acted alone, apparently knowing better than the rest of us what is collectively good for all of us—whether we like it or not! Liberal passions and libertinism aside, it is common sense, and supported by the best research, that kids do best with a mom and a dad; neither is fungible. And yet, as Justice Scalia pointed out, the inherent authority we have possessed since 1776, the right of “we the people” to govern ourselves has been subverted and destroyed by a black-robed oligarchy, irresponsibly acting as super-legislators, imposing their hyper-progressive version of reality on all. To observe that this action is profoundly repugnant to American ideals is an awesome understatement. Tyranny, even in the form of lofty sounding legalese, remains tyranny and must always be opposed by a free people.
  • Liberty Libeled: As Justice Thomas pointed out, throughout our history liberty has meant freedom from government interference, not entitlement to a government benefit nor a lawless libertinism. As such, the Kennedy clan further misinterpreted and perverted the 14th Amendment’s conception of liberty to serve the result they were seeking. Apparently when you are making constitutional “sausage,” (a.k.a garbage) the ends justify the means. And, it is important to point out here, that the 14th Amendment appropriately extended procedural legal rights (equal protection and due process) to African Americans; it did not create and coerce new substantive rights as the court has done here by radically redefining marriage, concocting a new genderless or androgynous version. This new radical “right” was fabricated by Kennedy, who did not even bother to follow the court’s precedents regarding equal protection (suspect classification/strict scrutiny) or fundamental rights (“deeply rooted in our history and traditions”).
  • Federalism on Fire:   And, not willing to remain constitutionally bounded by its federal “limited enumerated powers,” the Supremes have swallowed up yet another important area actually left by our founders to the states and to “we the people”—the power to define marriage. This action further subverts the checks and balances between the federal government and sovereign states. States and the people ought rather to retain plenary authority over everything, including marriage, not specifically delegated to the federal government. Unlimited federal power has led and will continue to lead to increasing tyranny over the states and the people.
  • Religion Ransacked: The gang-of-five seems to have forgotten or ignored actual constitutional rights, specifically the religious liberties embodied in the First Amendment which have, until recently, successfully protected religious freedom and rights of conscience for more than 220 years. As Chief Justice Roberts pointed out, this new judicially manufactured illegitimate “right” to SSM (crudely fabricated by the five from the 14th Amendment) has crushed and will continue to crush religious freedom, a clearly legitimate constitutional right. Because SSM has been compared with African-American civil rights and the civil rights of women, those poor souls who maintain the Judeo-Christian view of marriage will be vilified and persecuted as backwards bigots. If the statist radicals have their way, non-profit ministries and churches that refuse to comply may soon see their tax exempt statuses revoked.

It is indisputable that we have now, as a nation, foolishly drifted far from the safe harbors of our constitutional moorings out into violently churning uncharted waters of moral and legal anarchy. Rejecting the warning of John Adams, we have become a nation of “men,” carelessly casting aside our beloved Constitution and the rule of “law.” This soft-tyranny of the black-robed oligarchy, undermining the Constitution and with it the legitimate rights of the states and “we the people,” must not go unchallenged.

How far can this go? Are there any meaningful limiting principles, other than progressive elitist appetites, proclivities, and biases? Perhaps not! If the United States Supreme Court can get away with this, what can’t they do? If nearly all issues can be federally misappropriated by merely relabeling them “constitutional,” than we the people may have truly lost our ability to govern ourselves as we are increasingly ruled by an oligarchical elite who couch their tyranny in reasonable sounding words.

Indeed, it was tyrannical governmental usurpations that fomented our break from England; perhaps history will be repeated here. Regardless, unless something is significantly changed, it appears that the idea and ideals that were America, including self-government and freedom, may become largely lost to history.

This unwelcome diagnosis may be painful to hear and the prescription for what ails us is a bitter pill to swallow. John Adams was right: Unless we have an educated, moral, and engaged citizenry to elect wise leaders who respect and follow the law, there is little hope for a return to national greatness from this dark abyss of legal and moral anarchy. There is no easy path back to the lamp light of freedom left for us by our wise founders, but there is a path!

For the past eight years, the National Center for Law & Policy has been actively fighting for marriage, the sanctity of life, and religious liberty in an increasingly hostile culture and the courts.  Although the legal landscape and American values have changed and are changing, our mission, vision, values, and goals have not varied, nor will they vary one iota.  We will continue to stand firm in truth and fight the good fight.

Certainly, in this radicalized cultural environment, we must have hearts of compassion and backbones of steel.  Now is not a time for Christian wimps.  If you missed it, please read Dean’s powerful editorial appearing in the Christian News Journal, A Call for Christian Courage!  The board of directors, attorneys, and staff of the National Center for Law & Policy make this solemn pledge to you regarding our core areas of religious liberty, the sanctity of marriage, and the sanctity of life: We will not change!  Therefore, we commit to continue to:

  • Advocate for and defend individual believers, religious colleges, ministries, and churches from any and all threats to our freedom to believe, practice, express and actively live out our faithin all areas of our lives, both privately and publicly.
  • Engage the culture and the church by winsomely speaking the truth in love(Eph. 4:15) in hard-hitting opinion editorials, interviews, debates, and speaking opportunities.
  • Support policy efforts to pass legislation and secure constitutional amendments to protect religious liberty and the freedom of conscience, such as state and federal religious freedom restoration acts (RFRA’s).
  • Oppose and stop attempts to undermine the sanctity of life.For example, the NCLP is working with other pro-life advocacy organizations to fight California’s AB 775.
  • Advise and guide churches and Christian ministries regarding amending their bylaws and policiesto proactively prepare for future sexual orientation and gender identity lawsuits.
  • Encourage pastors to courageously shepherd and lead their flocks by clearly and compassionately preaching the gospel and the full counsel of God, including what the Bible teaches about the key moral issues confronting the church today.
  • And much, much, more…

The Obergefell v. Hodges decision has thrown proverbial gasoline on the already burning fires of anti-Christian sentiment. We expect to see and are in the process of preparing ourselves to handle a rapidly growing number of requests for our specialized legal assistance with a wide variety of cases involving religious discrimination and persecution. The battle lies before us and we need to make sure we have supply lines in place so that we do not run out of food or ammunition as we fight to keep the doors open for the spread of the gospel of Jesus Christ.