March 2018
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Constitutional Corner – Reflections on Obergefell

On the evening of Monday, July 1st, 1776, Caesar Rodney, sick in bed with skin cancer and asthma, received word that the two-person Delaware delegation at the Continental Congress in Philadelphia had earlier that day split their vote on Virginia’s resolution that the thirteen colonies declare their independence from Great Britain; one delegate had voted in favor, one opposed it. Caesar had been appointed as the third Delaware delegate, but his poor health had instead kept him home. The Delaware delegates’ votes nullified each other and Delaware was recorded as a null vote. The Pennsylvania and South Carolina delegations both voted “Nay.” John Adams’ impassioned speech had not persuaded. The New York legislature’s instructions to its delegation withheld authority to even vote on the question of independence, so New York could only “abstain.” Nine votes in favor would be enough to pass the resolution when the Committee of the Whole re-formed as the Congress, but this was well short of the unanimous vote the leaders of the independence movement were seeking.

South Carolina asked that the formal vote, when convened as the Congress, be delayed until the following day, suggesting they wanted time for further discussion and reflection.

The next morning, Tuesday, July 2nd, as the meeting was called to order, the sound of horse’s hoofs was heard outside on the cobblestones. Moments later, a mud-splattered Caesar Rodney walked into the room, spurs clanking on the wooden floor, bandages covering his cancerous cheek. Rodney had ridden all night, covering the 80 miles from his home to Philadelphia in record time, and earning himself the distinction as Delaware’s favorite son (and a place on Delaware’s state quarter 233 years hence).

Once re-convened as the Congress, the decisive vote was taken. Caesar Rodney’s “Aye” changed the Delaware delegation to an affirmative vote. At the Pennsylvania table, two chairs, occupied the previous day by John Dickinson and Robert Morris who had both voted against the measure, were mysteriously empty. Missing these two “Nays,” Pennsylvania’s negative vote of the previous day changed to the affirmative. South Carolina now voted in favor as well. The New York delegation had received no new instructions and could once again only abstain.[1] This was close enough. Richard Henry Lee’s resolution for independence was passed and the delegates turned their attention to the draft of a declaration prepared by John Adams’ committee and presented to the Congress the previous Friday. The words of the Committee’s reluctant Virginian rang like a bell: “When in the Course of human events…”

Question: Where are today’s Caesar Rodneys?

America is going to need more Caesar Rodneys, more people willing to discomfort themselves in order to do what must be done; many, many more, if we are to survive as a free republic. The die has nearly been cast, our metamorphosis from Christian nation to secular state is nearly complete.

Friday’s Obergefell v. Hodges decision ― which, unfortunately, does not roll off the tongue quite like “Roe v. Wade” but will hopefully become as familiar ― is indeed a watershed event, not because five Justices on the Court replaced their jurist robes for the clipboards and pen protectors of social scientists, the Court has done that all too often in the past; but rather because the decision will produce a veritable deluge of litigation as secularists use it to try to finally render moot (as well as mute) the Bible-believing Christian church in America, an objective they have pursued with focus and determination for more than 100 years.

By now you’ve read, at least those with an interest in the future of their nation have read, the decision itself, the dissents, and the multitude of critiques that have followed. You know how vacuous was the legal reasoning of Justice Kennedy and how sharp were the dissents. And you know what many predict will follow: the demands for even more grotesque forms of “marriage,” the demands to dismantle the tax-protected status of churches that dare oppose the “new social order,” the demands to de-license ministers who refuse to bow before the state, the barrage of Christian business bankruptcies that will come to those who choose to follow God rather than man.

These things will surely come, and worse; and the attempt to protect the Christian communityat the federal level, while welcome, will have limited effect, even if this President signs it, which he will not. The bulk of the challenges will come at the state and local level, and churches best prepare for them unless they decide to fall in line with the new prime directive: “if it feels right, it must be right.”

It would serve to consider how we got here, how less than 3% of Americans were able to change the legal status of an institution whose definition had been otherwise immutable for millennia. Succinctly, we got here because the church was largely silent; the pulpits were silent and the congregants were silent. Certainly some spoke out, but not clearly or loudly enough. For fear of offending or being seen as “intolerant,” we allowed the Court to “sanctify” a relationship that embodies a practice the Bible condemns as sin.

But we also got here through the law of unintended consequences. By letting government bestow benefits (tax benefits primarily) on couples, we created a “prize” to be sought by others who were denied it. Some are now calling for the end of such benefits; sorry, too late for that.

We also got here by allowing the Supreme Court to take license with the Constitution in the past without complaint. I ask in every one of my seminars, multiple times throughout the day, “Whose Constitution is it? Is it the Court’s Constitution? Is it Congress’? Is it the President’s?” The answer is no, it is the people’s Constitution and the people have been “asleep at the switch” for far too long.

Our schools no longer teach an original understanding of the Constitution and, once free from the formal education system, only a handful as adults take the time to go back and fill in what the schools omitted. We must fix this.

It is also important to discuss, with friends, neighbors, pastors and church members, what should be our response to this terrible decision (a discussion of the equally terrible Obamacare decision will await another day).

One response is to just accept the decision and “move on.” That would be a mistake. Not only will Progressives not stop with this victory, invigorated, they will push for the other changes previously mentioned. Already, some are calling for an end to all lawmaking based on religious reasoning. This would come as a shock to the Founders, for sure, but fits precisely with the attempt to render the Christian church a quaint relic of a bygone era, sort of like Amish buggies.

A second response is to dig in our heels and defy this decision at every opportunity. Speak out against it, march in support of Biblical marriage, refuse to implement the new policy. The Right to Life community did not fold their tents and go home, they continue to fight to this day, and have achieved some success. The Texas Attorney General is encouraging state officials with religious qualms over the ruling to defy it, and some are doing so. Ted Cruz thinks states that find the decision offensive should just ignore it unless they were a party to the particular Obergefell suit. This relies on the reasoning that a Supreme Court opinion is simply that: an opinion concerning two particular litigants. We’ve been taught to believe, unfortunately, that a Supreme Court decision ends the matter. As Jefferson wrote in an 1820 letter to William C. Jarvis: “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Oligarchy indeed. That’s what we’ve become; is it what we want?

A third response, not necessarily exclusive of the two previous ones, is to repeatedly show the American people, in vivid detail, the implications of allowing such poor performance by the Court to continue. It’s nice when you’re on the winning side of a Supreme Court decision, not so much fun when you’re not. The next time, progressives may not be so jubilant (could another Citizens United be lurking around the bend?). Nevertheless, we should insist on the highest standards of legal reasoning from our Supreme Court and when we don’t get it, as we did not this time, we should move to impeach those jurists responsible. There is an unwritten “agreement” that jurists will not be impeached for their decisions. I’m fine with that, but this reasoning, as the dissents vividly pointed out, was greatly flawed.

The final response is to realize there are some fundamental, structural problems with our Constitution; problems that the Founders in their haste at the end of four months of Philadelphia summer did not properly address. Article III was not written with the precision of Articles 1 & 2; the Judiciary was not well thought out. Term limits for federal judges must now be considered, with great urgency. We can no longer afford lifetime service (essentially) by unelected federal judges who have no appreciation for the Founders’ Constitution. Too much is at stake. The problem lies in how best to advance such an amendment to the Constitution. Congress has repeatedly demonstrated they are unwilling to take up this issue. The people must demand it be drafted in an Article V convention.

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. Comments on this essay and ideas for future essays should be sent to

[1] When New York’s delegation received new instructions on 19 July permitting them to vote for independence, the Congress was finally able to record New York’s affirmative vote and declare the “Unanimous Declaration of the thirteen united States of America.”

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