Same-Sex “Marriage” and the Crisis of Leadership
by STEPHEN M. KRASON
Many see the new putative constitutional right to same-sex “marriage” and the developments leading up to it as a result of a crisis of culture. It is that, to be sure, but it is also a result of a crisis of leadership. This has become further apparent in the aftermath of the Supreme Court’s Obergefell v. Hodges decision and, as I have stated in this column before, national leadership—at least after the dark night of the Obama era—must play a crucial role in resisting and overthrowing it.
The political branches—Congress and the president—for the most part historically have not understood their role vis-á-vis the judiciary and have abdicated their constitutional responsibilities. They need only look back to Federalist 78, which says the legislative controls the purse and the executive the sword, with the implication they can use those powers to stop the judiciary from becoming abusive. They should recall what Andrew Jackson said to Chief Justice Marshall and the Court in the Cherokee Indian Cases: “John Marshall has made a decision, now let John Marshall enforce it.” He couldn’t and it wasn’t.
It is not surprising that national Democratic politicians lauded the Obergefell decision to a man. To the Republican presidential candidates—almost half of them—who have said it should be accepted as settled law or indicated that it shouldn’t be challenged, I respond that they should look to what their party’s first president, Abraham Lincoln, said after Dred Scott: A decision of the Court binds only the parties before it and does not tie the hands of the political branches for all time. They are free to legislate otherwise if for no other reason than to force the Court to reconsider. Lincoln also refused to carry out Chief Justice Taney’s habeas corpus order in Ex parte Merryman.
All the Republican presidential candidates should be asked if they commit themselves to refusing to enforce Obergefell on reluctant states—in other words, using their rightful power to restrain a renegade Court. If they cannot answer “yes,” then they should not be supported. The usual stance of expressing disagreement with unconstitutional Supreme Court decisions followed by complete inaction is no longer acceptable. Presidential non-enforcement is, I believe, the most reliable way to thwart the Court’s unconstitutional decisions.
Nor is it enough for them to say they will make better Supreme Court appointments. Republican presidents have usually not even followed through with that. Too often their appointees (like Anthony Kennedy) end up as enablers or even spear-headers of the cause of a cultural revolution. Moreover, they cannot count on the opportunity to make enough appointments to change the Court.
To call for a constitutional amendment to overturn a decision is as good as saying nothing. It has only happened a couple of times in American history, will go as far with same-sex “marriage” as it has with abortion, and in any event is a tacit admission that the Court’s distorted understanding of the Constitution was actually correct. All it does is provide a leaf of political cover for a politician.