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Obergefell – Half-Right & Half-Wrong (Still Against Polygamy)

     By: Mark Henkel
Date: Jun 28, 2015
Word Count: 1000 words
Cross-Reference: Obergefell v. Hodges, SCOTUS, marriage equality

AUTHOR: Mark Henkel  
Mark Henkel is both the National Polygamy Advocate for the overall National Polygamy Rights Movement for Consenting Adults. He has been interviewed and reported by numerous major media in the United States. He is also a professional speaker who has given numerous speeches before non-polygamous audiences, including a Keynote Speech at Yale.  
FMI, see  
Obergefell – Half-Right & Half-Wrong (Still Against Polygamy) 
. . . . . . . . . by  
. . . . . . . . . . . . . . Mark Henkel  
Copyright © 2015 ALL RIGHTS RESERVED 

Obergefell v. Hodges was half-right to acknowledge the fundamental liberty right of Individuals to choose their marriages, but half-wrong to specifically give special rights for same sex marriage while still depriving polygamy. 

Marriage is a God-given Right of the Individuals

Marriage comes before government. These truths are self-evident: 

  • Marriage is a God-given right of the Individuals.
  • Marriage existed before the invention of government.
  • Marriage will still exist even if government collapses.
  • Marriage (just in case anyone forgot already) is a God-given right of the Individuals.

For these reasons, Marriage is a fundamental liberty right of the unrelated consenting adult Individuals to self-choose and self-define. 
Beyond the very few items expressly identified in the US Constitution, the role of government is only to protect the rights of Individuals from being infringed. The Constitution was established to define and limit the power-struggle between the Federal Government, each of the States, and the Individuals. 
All power begins - first - with the Individuals having their God-given rights. Power does not start from the Federal Government, flow down to the States, and then flow farther down to the Individuals. Rather, all power starts with the codified and uncodified rights of the Individuals. Then, powers flow down to the States. From there, only those powers expressly codified in the actual text of the US Constitution flow farther down to the Federal Government. Government's assignment of power is only to protect the rights of the Individuals. 


Government has no Authority in Marriage

The Federal Government is formed with three separate Branches. Congress writes the laws. The Supreme Court judges the laws. The President executes the laws. Again, all federal laws are constrained to only that which is expressly authorized in the text of the Constitution itself. 
"Marriage" is mentioned nowhere in the US Constitution. That is because Marriage is a God-given right of the Individuals. Thereby, the Tenth Amendment prohibits the Federal Government from any involvement in Individuals' Marriages. And both the Ninth Amendment and the First Amendment prohibit the States too. (Yes, not only does the First Amendment protect the "freedom of religion" in marriage, but it also protects Individuals' right to Marriage as "freedom of assembly.") 
Under such Constitutional constraint, that means that no one else has the authority to infringe an Individual's exclusive right to self-choose and self-define their own unrelated consenting adult Marriage. And that means that no one - no government, no "majority vote" (small-d democrats), no federal government, no state government, and no court - has any legitimate authority to license, define, or control the fundamental liberty right of every Individual to their own unrelated consenting adult Marriage. 
Whether it is supporters of OMOW (one man one woman) having their religious catholic belief to redefine marriage by excluding UCAP (unrelated consenting adult polygamy), or it is others having their imagination to redefine marriage by now including SSM (same sex marriage), neither side has the authority to infringe the fundamental liberty right of any Individuals to define or control their own unrelated consenting adult marital relationships. Both sides do indeed have the right to self-choose and self-define their decisions for OMOW or SSM, but they do not have the authority to impose their respective re-definitions of Marriage on others. 
The Congress, therefore, has no Constitutional authority to write any laws for Marriage. The Supreme Court has no Constitutional authority to define any specific definition of Marriage. The President, therefore, may have no Constitutionally-authorized laws or judicial decisions about Marriage to execute for unrelated consenting adults. 


Proper for SCOTUS to Protect Rights of Individuals

However, because the right to self-choose and self-define one's own unrelated consenting adult Marriage is a fundamental liberty right of all Individuals, there is indeed one context in which the Supreme Court of the United States (SCOTUS) does have a Constitutionally-assigned role. 
It is essential to understand that there is a distinct and profound difference between the Supreme Court defining and mandating any specific definition of Marriage versus the Court generally protecting the God-given right of Individuals to self-choose and self-define their own Marriages. 
For SCOTUS to define and/or mandate any specific definition of Marriage is an unconstitutional over-reach by the Court - "legislating from the bench" as well as violating the Tenth Amendment. Hence, SCOTUS is Constitutionally prohibited from mandating specific definitions - such as OMOW or SSM. 
But SCOTUS does have the appropriate role to protect the rights of Individuals. To be clear, when correctly doing so, such Supreme Court Decisions are not acts of top-down big government over-reach. Rather, when protecting the God-given rights of the Individuals, SCOTUS is correctly and Constitutionally fulfilling their assigned role of protecting the Individuals from government over-reach. 
Hence, because Marriage is a fundamental liberty right of the Individuals to self-choose and self-define as unrelated consenting adults, it is proper for SCOTUS to generally protect that right of the Individuals. 


Obergefell v. Hodges – Half-right & Half-wrong

When SCOTUS decided Obergefell v. Hodges on June 26, 2015, its majority rendered its decision by being "half-right and half-wrong." 
It was right in determining that Marriage is most definitely a fundamental liberty right of the Individuals. If the Court had stopped there and had only generally protected that right to unrelated consenting adult Marriage for all Individuals (realizing that no governments have authority to infringe those rights for anyone), SCOTUS' decision would have been Constitutionally correct and perfect. 
But its 5-4 Majority went beyond their Constitutional constraints. Instead, SCOTUS specifically defined and mandated its new (biased and bigoted) re-definition of Marriage supposedly as a "two-person union," thereby specifically adding SSM (same sex marriage) into Marriage laws that the Constitution does not so authorize. Such unconstitutional Judicial over-reach was clearly wrong. 
Thereby, SCOTUS' over-reach specifically expanded the unconstitutional special rights for those who choose the government-defined and government-controlled re-definitions of Marriage. OMOWs still get their big government special rights. Now, SSMs get those big government special rights too. But what about polygamists? 
Despite the SSM celebrations and hoopla of so-called "marriage equality" via the Obergefell Decision, UCAPs will receive no such "equality." Instead, all unrelated consenting adult polygamists will still be tyrannically deprived of their God-given rights as Individuals to self-choose and self-define their polygamous marriages.


Bibliographic URLs:

Obergefell v. Hodges 
June 26, 2015 
National Polygamy Advocate ™ 
Will SCOTUS Legalize Polygamy in 2015? 
January 28, 2015 
SCOTUS: States Must License Same Sex Marriage (but not Polygamy) 
June 28, 2015 
[Reviewed for publication - Review Board.]

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