Tenth Amendment Center, South Carolina and SCOTUS
Tenth Amendment Center, December 9, 2015: South Carolina Bill Seeks to Nullify SCOTUS Opinion on Marriage
In their December 2015 article on South Carolina’s H4513 Natural Marriage Defense Act, the Tenth Amendment Center highlights not only some of the Obergefell-nullifying language contained in the proposed bill, but also some of the perceived shortcomings of such a proposition.
The bill, prefiled in late 2015 by Rep. Bill Chumley and Rep. Mike Burns in the South Carolina State House, appeals to existing South Carolina Law and the State Constitution in an attempt to persuade civil authorities to put needed enforcement power behind the state constitutional amendment on marriage that passed in 2006 with 78% of the vote.
The Tenth Amendment Center claims, regarding a successful passage of the bill, that “In today’s court system, however, the state would almost certainly come out the loser”. The contention is that in the today’s American political system, all courts – likely including state courts – and federal authorities will defer to the Supreme Court. They rightly point out that H4513 would certainly be challenged in federal court, and the federal courts will side with the federal government. Their next statement is key: The effectiveness of the South Carolina Natural Marriage Defense Act would rest entirely on the willingness of the state to maintain resistance to federal authority.
Precisely because “It will not win any courtroom battles”, the lesser governing authorities will need to interpose on behalf of the people against a tyrannical higher authority – in this case, SCOTUS, and by extension, the Federal Government. This type of interposition has historically been referred to as the Lesser Magistrate Doctrine.
The hope of the Tenth Amendment Center, and many politicians, is to avoid the unavoidable: confrontation with the Federal Government. The claim that this confrontation can be avoided by backing the states out of marriage licensing – as some legislators in Alabama, Oklahoma and Michigan have considered as another way to undermine the federal definition of marriage – is precarious at best. In all likelihood, this is a strategy that will leave the fight against America’s moral decay to a future generation and provide even more time for perversion to entrench itself ever deeper into our culture. Any successful battle against the redefinition of marriage will be confrontational at its core, requiring leaders that will have the fortitude to lead the charge.
H4513 was referred to the House Committee on the Judiciary where it will be take up when the legislature reconvenes in January.
You can read the prefiled version of the bill here.