Same-Sex Marriage: The Sanctity of an Oath and the Duty to Disregard

Barb Wire

Building the Resistance to Same-Sex Marriage…
(sixth in a series of articles)

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.

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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. [Capitalization original.]

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 opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.

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