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

26.168.18 101st Legislative Session HCR6010

2026 South Dakota Legislature
House Concurrent Resolution
6010

Introduced by: Representative Randolph

Underscores indicate new language.
Overstrikes indicate deleted language.
A CONCURRENT RESOLUTION urging the Supreme Court of the United States to 1
overturn the decision in Obergefell v. Hodges. 2
WHEREAS, the decision by the Supreme Court of the United States in Obergefell v. 3
Hodges, 576 U.S. 644 (2015), is at odds with the Constitution of the United States and the 4
principles upon which the United States was established; and 5
WHEREAS, liberty has long been understood as individual freedom from governmental 6
action, not as a right to a particular governmental entitlement; and 7
WHEREAS, Obergefell, in invoking a definition of “liberty” that the Framers would not have 8
recognized, rejected the idea that human dignity is innate, which is captured in the 9
Declaration of Independence, and instead suggested that human dignity comes from the 10
government; and 11
WHEREAS, when the Framers proclaimed in the Declaration of Independence that "all men 12
are created equal" and "endowed by their Creator with certain unalienable rights," they 13
referred to a vision of mankind in which all humans are created in the image of God and 14
therefore are of inherent worth; and 15
WHEREAS, Obergefell undermines this vision by declaring that citizens must seek dignity 16
from the state; and 17
WHEREAS, Obergefell relies on the dangerous fiction of treating the due process clause of 18
the Fourteenth Amendment to the Constitution as a font of substantive rights, a doctrine that 19
strays from the full meaning of the Constitution and exalts judges at the expense of the people 20
from whom they derive their authority; and 21
26.168.18 2 HCR6010
Underscores indicate new language.
Overstrikes indicate deleted language.
WHEREAS, Obergefell's inversion of the original meaning of liberty causes collateral 1
damage to other aspects of our constitutional order that protect liberty, including religious 2
liberty; and 3
WHEREAS, the Supreme Court recognized in the United States v. Windsor, 570 U.S. 744 4
(2013), that the definition of marriage is "an area that has long been regarded as a virtually 5
exclusive province of the States," meaning that South Dakota, and not the Supreme Court, 6
has the right to regulate marriage for its citizens; and 7
WHEREAS, Obergefell requires states to issue marriage licenses to same sex couples and 8
to recognize same-sex marriages in complete contravention of their own state constitutions 9
and the will of their voters, thus undermining the civil liberties of those states' residents and 10
voters; and 11
WHEREAS, marriage as an institution has been recognized as the union of one man and 12
one woman for more than two thousand years, and within common law, the basis of the 13
United States' Anglo-American legal tradition, for more than 800 years; and 14
WHEREAS, the voters of the state of South Dakota defined marriage in a 2006 statewide 15
initiative as only the union of one man and one woman; and 16
WHEREAS, Obergefell arbitrarily and unjustly rejected this definition of marriage in favor 17
of a novel, flawed interpretation of key clauses within the Constitution and our nation's legal 18
and cultural precedents; and 19
WHEREAS, the Obergefell decision was illegitimate because two of the Justices in the 20
majority ruling, Justices Ruth Bader Ginsburg and Elena Kagan, had previously officiated 21
same-sex weddings, and thus were not impartial triers of fact, and therefore should have 22
recused themselves according to 28 U.S.C. § 455 (December 1, 1990); and 23
WHEREAS, since court rulings are not laws and only legislatures elected by the people 24
may pass laws, Obergefell is an illegitimate overreach; and 25
NOW, THEREFORE, BE IT RESOLVED, by the House of Representatives of the One Hundred 26
First Legislature of the State of South Dakota, the Senate concurring therein, that the 27
Supreme Court of the United States be urged to revisit, at the first opportunity, the precedent 28
set in Obergefell v. Hodges, overturn the decision, and thereby correct the overreach of 29
judicial power exemplified therein. 30