The Supreme Court’s decision last week did make gay marriage legal around the nation. Unfortunately for social conservatives, it did not, however, make nullification legal around the nation.
Nullification is the historical idea that states can ignore federal laws, or pass laws that supersede them. This concept has a long but not especially honorable pedigree in U.S. history. Its origins date back to antebellum America, where Southern states tried to nullify tariffs and Northern states tried to nullify fugitive-slave laws. In the 1950s, after Brown v. Board of Education, some Southern states tried to pass laws to avoid integrating schools. It didn’t work, because nullification is not constitutional.
Yet futile hope springs eternal. Since the ruling, a handful of officials have suggested that states need not issue licenses for same-sex marriages. The two most notable voices are two Republican candidates for president, Mike Huckabee and Ted Cruz.
They cannot ignore a direct judicial order. The parties to a case cannot ignore a direct judicial order. But it does not mean that those who are not parties to case are bound by a judicial order ....
The entire premise of the decision on marriage was that in 1868, when the people of the United States ratified the 14th Amendment, that we were somehow silently and unawares striking down every marriage law across the country. That's a preposterous notion. That is not law. That is not even dressed up as law.
This is a little slippery to interpret—Cruz’s words are opaque, so that it’s unclear whether he’s actually arguing that officials should refuse to issue marriage licenses, or simply making an intellectual argument that they could. (Or perhaps it’s a dogwhistle!)
Is he right? “It’s ridiculous,” said David Vladeck, a professor of law at Georgetown. “The Supreme Court says the Fourteenth Amendment requires states to issue licenses .… That is the law of the land. We have something in the Constitution called the Supremacy Clause,” which states that the Constitution is the ultimate authority in the U.S.
One argument here is that the ruling only applies to the Sixth Circuit, as that’s where the case the justices decided originated. That might hold true if it was a statutory, rather than constitutional ruling, Vladeck said—but it wasn’t. “Ted Cruz ought to know that. I knew Ted Cruz before he became the new Ted Cruz, and he was an able lawyer,” Vladeck said. “My guess is this is just political posturing of the worst kind.”
Now, a state—say, Texas, where Attorney General Ken Paxton has told clerks they can refuse to issue same-sex marriage licenses—could try its luck: “You don’t have to obey a red light,” Vladeck cracked. But it’s pretty easy to guess what would happen: A plaintiff would bring a civil-rights suit; courts would rule in their favor; and the state would probably have to pay for the plaintiffs’ attorneys fees, under a federal law.
Mike Huckabee takes a slightly different approach: “I'm not sure that every governor and every attorney general should just say, well, it's the law of the land because there's no enabling legislation.”
The former Arkansas governor has been trying this line for some time, but it hasn’t gotten any more correct since I wrote about it in January. Huckabee is claiming that there needs to be an affirmative law authorizing gay marriage, but that’s wrong. The justices ruled only that provisions banning same-sex marriage are illegal, not that all marriage laws have to be rewritten. By analogy, the Supreme Court’s decision overturning bans on mixed-race unions in Loving v. Virginia didn’t eliminate all marriage laws.
Really, the only way a state or jurisdiction could legally circumvent the Court’s ruling would be to stop issuing marriage licenses altogether. “But that would be self-defeating, particularly among people who view marriage as the foundation of American society,” Vladeck noted.
There’s some precedent for that, though it’s not pretty. After Brown, some whites pulled their children out of public schools and opened all-white “segregation academies”—effectively reconstituting the public schools as private ones and avoiding integration orders. Virginia tried to close public schools that integrated. When that was ruled unconstitutional, Prince Edward County simply closed down its entire public-school system. Elsewhere in the South, the resistance was less elaborate—governors like Orval Faubus and George Wallace simply tried to block integration, sometimes by literally standing in the doorway. They were overruled by the federal government.
Unlike in the 1950s and 1960s, it seems unlikely that the government will send in troops to enforce the Court’s ruling on marriage. That’s because they won’t have to, which is a positive sign for the rule of law in the United States. But there may be a period of litigation as marriage-equality opponents exhaust every possible path (and possibly their states’ coffers) fighting against the ruling.
To see how real the shift is, look to the example of Roy Moore, the chief judge of the Alabama Supreme Court. Moore became famous in an earlier term as chief judge, when he refused to remove a Ten Commandments monument and was removed from the bench. He later returned, and in February instructed Alabama probate clerks not to issue same-sex marriage licenses, despite a federal court striking down Alabama’s gay-marriage ban—a bid for state judiciaries to trump the federal one. This week, Moore issued a confusing order, but then clarified to say that he was not instructing probate clerks to disobey the Supreme Court.
Perhaps Moore doesn’t want to be remembered alongside Orval Faubus and George Wallace. Or maybe he’s just realized what some people were saying all along: There’s no such thing as nullification.