By John Hostettler
The U.S. Supreme Court will issue its opinion in the Obergefell v. Hodges case later this month. The complainants in the four cases consolidated under Obergefell ask the Supreme Court to, in effect, strike down state laws limiting recognition of “marriage” to the union of one man and one woman. Their complaints allege violation of equal protection and/or due process safeguards found in the Fourteenth Amendment of the U.S. Constitution. State officials in my home state of Indiana, as well as the other sovereign states, are duty-bound, as a result of their oath of office, to disregard such meddling in state marriage policy by the federal government – especially by the Supreme Court.
It’s a well-established principle in government that personnel subordinate to a higher command authority are required to follow only “lawful” orders directed to them. This principle is made express in the military, where the Uniform Code of Military Justice (Title 10 of the U.S. Code) requires that “any person subject to this chapter who … violates or fails to obey any lawful general order or regulation … shall be punished as a court-martial may direct.”
Note that a member of the Armed Services of the United States is subject to court-martial if he “violates or fails to obey” a “lawful” precept directed to him. The obvious inference is that a member of the armed services is not subject to punishment for his refusal to obey an order which is not “lawful.” At least since Nuremburg, military law does not allow a soldier to argue in a court martial proceeding that he was “just following orders” if those orders were unlawful.
How do these principles apply in the context of the judiciary? Article III of the U.S. Constitution expressly only creates “one supreme Court,” and then authorizes Congress to create courts “inferior” to the Supreme Court. Section 27 of the Judiciary Act of 1789 mandated that “a marshal shall be appointed in and for each [judicial] district …, whose duty it shall be … to execute throughout the district, all lawful precepts directed to him, and issued under the authority of the United States.” Once again, marshals are empowered to execute only “lawful” orders issued by the judiciary. If in enacting the Judiciary Act of 1789, Congress considered all judicial orders to be lawful, it would have not included the word “lawful” in that statute. If federal officials are bound to execute only those “precepts” which are “lawful,” how then should state officials consider their duty to faithfully execute their offices under the U.S. Constitution?
In order to understand the duty of a state official, it is necessary to understand the doctrine of federal “preemption.” Constitutional law scholars and lawyers routinely assert that federal law and federal judicial edicts “preempt” state and local law and state judicial edicts. That is, whenever the federal government takes an action, any state or local action to the contrary is “preempted” by the federal action. The doctrine of preemption is grounded in the Supremacy Clause in Article VI of the Constitution. The Supremacy Clause states:
“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;… any thing in the constitution or laws of any state to the contrary notwithstanding.”
Should the majority of Supreme Court justices believe that the U.S. Constitution prohibits states from defining marriage as only between one man and one woman, it will be widely assumed that the Supremacy Clause of the U.S. Constitution “preempts” the “constitution or laws of any state to the contrary” solely because of the opinion issued by the High Court. However, the doctrine of preemption is not unlimited, as those lawyers and politicians who embrace the doctrine of judicial supremacy seem to believe. Let’s re-examine the original plan.
In explaining the supportive role that the states would play in the proper operation of the federal government, Alexander Hamilton put it this way in Federalist Paper No. 27:
“the legislatures, courts and magistrates of the respective members [i.e., states] will be incorporated into the operations of the national government, AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws.”1
Thus, properly understood, preemption only applies to the “JUST and CONSTITUTIONAL authority” of the federal government. Given that (i) the law of domestic relations and marriage policy has never been made the “JUST and CONSTITUTIONAL AUTHORITY” of the federal government (except for the District of Columbia and federal territories) and (ii) the Equal Protection Clause of the Fourteenth Amendment applies only to a limited set of protections in state-administered legal processes, there is no “lawful” basis for a claim of preemption in this case.
The duty to disregard any federal judicial usurpation of the states’ lawful jurisdiction of marriage policy flows from another constitutional clause which invokes a duty to an even higher authority than any temporal legal system, federal or state. Immediately following the Supremacy Clause, Article VI of the Constitution provides that “the members of the several state legislatures, and all executive and judicial officers … of the several states, shall be bound by oath or affirmation, to support this constitution.” Known as the “Oath or Affirmation Clause,” this provision requires every state official to swear or affirm their fidelity to the U.S. Constitution. In explaining the profound relationship between the Supremacy and the Oath or Affirmation Clauses, Alexander Hamilton highlighted the limited application of both. Once again in Federalist Paper No. 27, Hamilton remarked,
“the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which, all officers legislative, executive and judicial in each State, will be bound by the sanctity of an oath.”2
It’s clear that state officials are “bound by the sanctity of an oath” to observe “the laws of the Confederacy.” However, that oath is limited in its application to the “ENUMERATED and LEGITIMATE objects of” the Confederacy’s jurisdiction. The power to overrule the states’ restrictions on marriage policy has never been added to the “ENUMERATED and LEGITIMATE objects of” the jurisdiction of the United States. Therefore, without the future addition of such authority through the process set out in Article V for amending the federal Constitution, no order pursuant to any such opinion is “lawful.”
Finally, it cannot be overemphasized at this juncture that no provision of the U.S. Constitution elevates an opinion issued by the federal judiciary — including an opinion issued by the U.S. Supreme Court — to the level of the “supreme law of the land.” Indeed, there is only one time that I have ever heard that the U.S. Supreme Court was so consumed with pride to have even uttered such a radical principle. See Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]hat the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’”).
This aberrational statement of the Supreme Court should be viewed as a very lonely exception to the view of Blackstone as embraced generally by our Framers 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.” I. W. Blackstone, Commentaries on the Laws of England 71 (Univ. Chi. facsimile ed. 1765).
Additionally, no provision of the U.S. Constitution obligates any elected official — federal or state — to “be bound by oath or affirmation, to support” an opinion issued by the federal judiciary.
If it had been the intention of the Constitution’s framers to exclusively delegate all questions of Constitutional finality to the unelected, life-tenured members of the U.S. Supreme Court — and to relegate every other elected office — federal and state — to a position of subservience to the decisions of that Court, Article VI of the United States Constitution would have been the place in the U.S. Constitution where this peculiar doctrine would have been made obvious. From its omission, it is clear that this was never the Framers’ intent.
Therefore, state officeholders remain bound by the sanctity of the oath they took which binds them to uphold their respective state constitutions and the laws which define and regulate marriage in their particular member of the Confederacy. They cannot be considered “good soldiers” by doing anything else.
John Hostettler served in the U.S. House of Representatives from 1995-2007; he is author of Ordained and Established: A Statesman-Citizen’s Guide to the United States Constitution (www.ordainedandestablished.com).
This article is part of a series on “Building Resistance to Same-Sex Marriage.” Should you want to help support this important work, contributions may be made to the U.S. Justice Foundation.
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