That is what is called anarchy and as unpopular as some laws or in this case decisions are judges are not afforded that opportunity....our side (and rightly so) would call that judicial activism.
Wrong. Anarchy is judges violating their oaths and trying to make laws from the bench.
According to our constitutions, only the legislative branch gets to do that. And even then, those laws must be constitutional and moral to be of any effect.
“One may well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’
Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.
...Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong. ...A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law.
I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law. Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.
We should never forget that everything Adolf Hitler did in Germany was ‘legal’ and everything the Hungarian freedom fighters did in Hungary was ‘illegal.’ It was ‘illegal’ to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws.”
— Dr. Martin Luther King, Jr., Letter from a Birmingham Jail
“Hence also, the origin of all civil government, justly established, must be a voluntary compact, between the rulers and the ruled; and must be liable to such limitations, as are necessary for the security of the absolute rights of the latter; for what original title can any man or set of men have, to govern others, except their own consent? To usurp dominion over a people, in their own despite, or to grasp at more extensive power than they are willing to entrust, is to violate that law of nature, which gives every man the right to his personal liberty; and can, therefore, confer no obligation to obedience.”
“When human laws contradict or discountenance the means, which are necessary to preserve the essential rights of any society, they defeat the proper end of all laws, and so become null and void.”
— Alexander Hamilton
“Good and wise men, in all ages...have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensably, obligatory upon all mankind, prior to any human institution whatever...This is what is called the law of nature, which, being coeval with mankind, and dictated by God himself, is, of course superior in obligation to any other. It is binding over all the globe, in all countries at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately or immediately, from this original.”
— William Blackstone
“[T]he Law of Nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions must . . . be conformable to the Law of Nature, i.e., to the will of God. [L]aws human must be made according to the general laws of Nature, and without contradiction to any positive law of Scripture, otherwise they are ill made.”
— John Locke, Two Treatises on Government
“’Just and true liberty, equal and impartial liberty,’ in matters spiritual and temporal, is a thing that all men are clearly entitled to by the eternal and immutable laws of God and nature, as well as by the law of nations and all well-grounded municipal laws, which must have their foundation in the former.”
— Samuel Adams, The Report of the Committee of Correspondence to the Boston Town Meeting, Nov. 20, 1772
As we take the time to sort out the implications of the ongoing state-by-state attack on marriage, with the courts the primary culprits, I believe that most of us are still in the learning phase when it comes to the powers of the executive and legislative branches to check the judiciary.
Given the importance of the matter, anything and everything should be constitutionally explored to preserve our good inheritance for future generations.
Our federalist system was designed to preserve that inheritance as long as possible. When a state takes a blow in a manner destructive of its constitutional institutions, the federal government is most especially obliged to act.
We cannot lose sight of Article IV in the U.S. Constitution. Section 4 requires that the states (and the people) retain the ability to make laws to govern themselves. We read:
“The United States shall guarantee to every state in this union a republican form of government[.]”
This means, for instance, that an oligarchy of any sort is prohibited in the states. None but a state-by-state republic is permitted or guaranteed. And we know the word “guarantee” is a legal term, that carries with it the expectation of power and obligation to enforce the promise made.
The federal government is the body charged in Article IV with direct obligatory oversight, as an extra layer of protection to liberty, in order to secure the ability of the people in each state to make laws in their republic.
No branch of government anywhere, whether at the state or federal level, has the constitutional authority to impose oligarchical rule upon the body of the people. Nor does the Constitution tie our hands, or the hands of the chief executive and legislature, when the states are under attack. In its full context, Article IV, Section 4, explicitly names the executive and legislative branches as the chief instruments charged to provide ultimate protection to the states, to fulfill the purpose of federalism in the Constitution:
“The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.”
When it comes to judicially-imposed radicalism, the Founders did not leave us without recourse. The federal government, in particular the executive and legislative branches, is bound by contract to make good on the republican guarantee of Article IV.
We are designed to be a nation of law, not of caprice. And “we the people” fought a revolution against tyrannical caprice just for the opportunity to make law in harmony with the laws of nature. If we look more closely at the legal instrument our Founders created, we see that they did not leave us unprotected. All we have lacked in modern times is the election of individuals who are wise and courageous enough to uphold their oath to preserve, protect, and defend the Constitution of the United States.