Gary Wisenbaker Blog
Gary Wisenbaker
SCOTUS, the Constitution and Moral Authority
Obergefell and nine people outside the ballot box

Roe v. Wade deja vu alover again?
While the professional and rookie rioters burned and pillaged Baltimore last week the United States Supreme Court presided over a similar assault on federalism and the Constitution. 
In both instances, the gates of law and order in Baltimore and the gates erected by the framers of the Constitution to protect the people and the states from imperial federal intrusion came under assault by those who either have no understanding of the rule of law or, worse, no regard for it. Theirs is a standard based on “if it feels good, do it” rather than the genius of the Constitution. 
Such are the times in which we now live.

That the Supreme Court does a better job defending the Constitution than Baltimore’s leadership did in protecting its citizens is no given.  The errors of the latter can be addressed at the ballot box; those of the former cannot.  But if SCOTUS decides the case presently before them correctly, the issue before them would be similarly addressed: at the ballot box.

And that would be the right result not for moral, emotional or religious reasons but, rather, for constitutional reasons.

The matter before the Court is a case called Obergefell v. Hodges, which really refers to four cases coming to the Court from the 6th Circuit Court of Appeals.  The plaintiffs in these cases brought suit seeking to strike down the “marriage means the union of one man-one woman” laws of Ohio, Tennessee, Michigan and Kentucky.  The plaintiffs, all in (or trying to be in) same sex marriages, allege that those state laws deprived them of their constitutional right to marry within their own sex.
The circuit court disagreed and upheld the states’ laws defining marriage finding that the Constitution, being silent on the issue of marriage, does not require states to either define or redefine marriage.  And if there’s no constitutional guarantee to same-sex marriage, then there can be no Fourteenth Amendment (denial of equal protection or due process) violation inherent in the application of those laws.

The issue cannot, and should not, be decided on the passionate level. Honest people on both sides of same sex marriage debate will have equally honest convictions and disagreements. That will continue no matter how SCOTUS rules.

The overriding and important question before the Court, however, is who or what will decide what marriage “is” in America?  

And the correct answer to that question is: the states.  It ought to be so because marriage is simply not a federal question. 

Whether or not SCOTUS arrives at that answer won’t be known until this June.

The Court, however, addressed this proposition two years ago when it overturned the federal Defense of Marriage Act (“DOMA”) in United States v. Windsor, a case resolving a conflict between New York state’s allowance of same sex marriage with DOMA’s disallowance as it defined marriage for federal purposes as a “one man-one woman union”.

Although the Court struck down DOMA as an unconstitutional federal statute under the Fourteenth Amendment, Justice Kennedy’s majority opinion was very clear about the states’ role in defining marriage.

“The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning. . .The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests and the enforcement of marital responsibilities,” Kennedy wrote.

In the more recent Obergefell arguments, even Justice Stephen Breyer, a dependable liberal vote on the Court, lectured that the “one man-one woman union” definition of marriage “has been the law everywhere for thousands of years…and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change …what marriage is to include gay people.”    

Breyer then said something rather remarkable:  “Why cannot those states [that don’t recognize same sex unions] at least wait and see whether in fact [including same sex unions in the definition of marriage] in the other states is or is not harmful to marriage?”

Exactly.  America is composed of 50 “laboratories of democracy” each experimenting with what works best for each.  States observe each other and maybe mimic, maybe not.  It is a strength of our Union.

And not all differences are susceptible to federal adjudication because not all differences are federal questions.  Marriage is one of them.  There is simply no need nor authority, quite frankly, to rush to a 50 state solution to a problem not all Americans recognize as a problem.  Doing so only inflames and expands a debate just as the Roe v  Wade abortion decision did 42 years ago and the matter seems largely unsettled even today.

America is ultimately governed by its citizens as manifested by the opening words of the Constitution, “We the People…”  Thus, this country’s leaders can only draw their governing authority from the will of the people. 

Justice Kennedy, like Justice Breyer, seemed to get this when he said last week, “This [one man-one woman union] definition of marriage has been with us for millennia.  And it—it’s very difficult for the Court to say, oh, well, we—we know better.”

The Court would do well to follow this instinct—that they lack the moral authority—and rule for the people, the states, and the Constitution. Let the citizens in their states duke it out at the ballot box; that’s what they’re supposed to do.  

This decision shouldn’t be left to “nine people outside the ballot box.”

Gary Wisenbaker, B.A., J.D. is a native of South Georgia where he practiced law in Valdosta and Savannah for 31 years. He has served as state chairman of the Georgia Young Republicans and Chairman of the Chatham County (Savannah) Republican Party. Gary is a past GOP nominee for State Senate, past delegate to the Republican National Convention and has consulted on numerous local Republican campaigns as well as chaired or co-chaired campaigns for President and US Senate on the county and district level. He is the principal and founder of Blackstone, LLC, a corporate communications and public relations concern as well as Wiregrass Mediation Services, LLC, a general civil litigation mediation firm. 

Gary recently published his first fictional work, “How Great is His Mercy: The Plea”, on  His opinions are regularly published on and 

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