A CONCURRENT RESOLUTION urging the Supreme Court of the United States to overturn the decision in Obergefell v. Hodges.

WHEREAS, the decision by the Supreme Court of the United States in Obergefell v. Hodges, 576 U.S. 644 (2015), is at odds with the Constitution of the United States and the principles upon which the United States was established; and

WHEREAS, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement; and

WHEREAS, Obergefell, in invoking a definition of “liberty” that the Framers would not have recognized, rejected the idea that human dignity is innate, which is captured in the Declaration of Independence, and instead suggested that human dignity comes from the government; and

WHEREAS, when the Framers proclaimed in the Declaration of Independence that "all men are created equal" and "endowed by their Creator with certain unalienable rights," they referred to a vision of mankind in which all humans are created in the image of God and therefore are of inherent worth; and

WHEREAS, Obergefell undermines this vision by declaring that citizens must seek dignity from the state; and

WHEREAS, Obergefell relies on the dangerous fiction of treating the due process clause of the Fourteenth Amendment to the Constitution as a font of substantive rights, a doctrine that strays from the full meaning of the Constitution and exalts judges at the expense of the people from whom they derive their authority; and

WHEREAS, Obergefell's inversion of the original meaning of liberty causes collateral damage to other aspects of our constitutional order that protect liberty, including religious liberty; and

WHEREAS, the Supreme Court recognized in the United States v. Windsor, 570 U.S. 744 (2013), that the definition of marriage is "an area that has long been regarded as a virtually exclusive province of the States," meaning that South Dakota, and not the Supreme Court, has the right to regulate marriage for its citizens; and

WHEREAS, Obergefell requires states to issue marriage licenses to same sex couples and to recognize same-sex marriages in complete contravention of their own state constitutions and the will of their voters, thus undermining the civil liberties of those states' residents and voters; and

WHEREAS, marriage as an institution has been recognized as the union of one man and one woman for more than two thousand years, and within common law, the basis of the United States' Anglo-American legal tradition, for more than 800 years; and

WHEREAS, the voters of the state of South Dakota defined marriage in a 2006 statewide initiative as only the union of one man and one woman; and

WHEREAS, Obergefell arbitrarily and unjustly rejected this definition of marriage in favor of a novel, flawed interpretation of key clauses within the Constitution and our nation's legal and cultural precedents; and

WHEREAS, the Obergefell decision was illegitimate because two of the Justices in the majority ruling, Justices Ruth Bader Ginsburg and Elena Kagan, had previously officiated same-sex weddings, and thus were not impartial triers of fact, and therefore should have recused themselves according to 28 U.S.C. § 455 (December 1, 1990); and

WHEREAS, since court rulings are not laws and only legislatures elected by the people may pass laws, Obergefell is an illegitimate overreach; and

NOW, THEREFORE, BE IT RESOLVED, by the House of Representatives of the One Hundred First Legislature of the State of South Dakota, the Senate concurring therein, that the Supreme Court of the United States be urged to revisit, at the first opportunity, the precedent set in Obergefell v. Hodges, overturn the decision, and thereby correct the overreach of judicial power exemplified therein.