Bad Law is Still Law

Steve Hays has a thought-provoking post (link) sparked by my own previous post (link). Since his post doesn’t seem to directly dispute the central thesis of my own post, namely that Obergefell is law, no rebuttal is needed. In fact, I find a lot of points in Steve’s post with which I agree – or at least I think that there are issues worth considering.

For example, Steve wrote: “Whether executive agency regulations should have the force of law is hardly indisputable.” Whether they do have the force of law is different from whether they should have the force of law. In practice, they have a slightly different effect from legislative law, but they are (in general) still laws that people have to abide by. Whether this should or shouldn’t be the case is essentially academic.

Moreover, Steve’s point about executive agency regulations helps underscore the point of my original post. After all, while agency regulations may have disputable standing on some academic level, judicial precedent is not disputable.

Steve commented (regarding agency regulations): “To my knowledge, that’s not something the Founding Fathers envisioned.” Whether or not they did, they definitely envisioned judicial precedent as law.

Skipping over other interesting things Steve said, toward the conclusion of the post, Steve raises a question of whether there should be judicial supremacy. If the question here is founder’s intent, it’s worth noting that Judicial supremacy goes back to 1803 in which the Supreme Court first declared a law void based on the law being unconstitutional. That was in a case brought against President Madison, who was one of the founders. Once again, there is a sort of academic argument to be made that the final determination of constitutionality should lie in the Executive or Legislative branches, but in practice that’s not where the American system is today.

Today, even when the Supreme Court makes bad Constitutional decisions, its decisions stand as law until either they are overruled by subsequent Supreme Court decisions or the U.S. Constitution is amended. That’s how the system is, whether or not that’s how the system should be. I leave the should be question to the academics and the rich.

As a result, Christians should not go around making foolish claims that Obergefell isn’t law. They may oppose it, but they should recognize it for what it is.

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