First as Tragedy, Then as Farce

I: Legal Marriage Precedent

II: The Neo-Neo-Nullificationalists

The Supreme Court should decide the fate of the gay marriage issue sometime around June. In previous decisions, the Court has held that the federal government may not define marriage in the so-called "traditional" sense, and also refused to overturn rulings by appeals courts which struck down state bans on same-sex marriage. But the upcoming consolidated cases pose much more ultimate questions, namely of whether states are allowed to ban gay marriage.

In the dark nether-regions of the country, the "defenders of marriage" (that is, those defending the institution from those who want to get married) are anticipating a ruling that would expand the civil rights of gay people, and they are taking proactive action to prevent such a  travesty. 

I: Legal Marriage Precedent

On their prediction of a positive ruling, the enemies of freedom are probably right. The Roberts Court has steadily moved to the right side of the marriage issue. Antonin Scalia predicted as much in his dissent to US v. Windsor. He wrote:

"As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition."

Scalia's complaints are more correct than I think he intended. We are fighting against the enemies of human decency, and for well arming us, I thank the majority.  

But in reality, the jurisprudence in question here was settled long before Windsor. This is, as the question presented to the Court betrays, a 14th Amendment issue. Particularly important are the Due Process and Equal Protection clauses of this Amendment. They read:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This essential clause was the Radical Republicans' fix to a problem that has defined civil rights in the the United States: in all of American history, the most egregious civil rights abuses have been committed by state governments. For this reason, the term "states' rights" has become literal code-word for racist policy.    

But the fix is eloquently simple. States may not deprive citizens of liberty, and states must protect the rights of all people equally. The only question remaining is of what is meant by "rights" and "liberty." The Court had its best go of answering this question in Meyer v. Nebraska (1923):

"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free [people]."

It really could not be clearer for the Justices come June. Not only has the Court directly recognized that marriage is indeed a constitutional liberty, but we can clearly see that the cries of the thousands of marginalized gay couples fall clearly into the category of "privileges...essential to the the  orderly pursuit of happiness." Frankly, it's amazing that the Court has not recognized the unconstitutionality of marriage bans yet. 

II: The Neo-Neo-Nullificationists 

But everyone knows that those fighting for marriage equality are on the right side of history. The legal arguments behind them are in no way new.The really story here is the disgraceful reaction by our nation's reactionaries. There was a must-read article in Wednesday's New York Times about this nostalgic incident. 

The shenanigans include bill proposed in Oklahoma, South Carolina, and Texas that would punish officials who issue marriage licenses to same-sex couples by reducing their salary. Of course, the enforcement of such a law would create a constitutional crisis of sorts. Credit where credit is due -- the bigots are endlessly creative. It does not explicitly violate the Supremacy Clause since it would not literally contradict the Supreme Court's expected ruling. But can a state punish an agent for carrying out federally mandated state laws? I am personally not aware of any precedent on the matter. Surely it is wrong to force some person to do something and then punish them for doing so, but, as far as I know, it is not technically illegal. This would quite seriously put state agents between the clichéd rock and hard place. And this slippery dodge of justice is reminiscent of the whack-a-mole habit of Southern legislators during the Civil Rights Movement, which Ruth Bader Ginsburg described as follows in her Shelby County v. Holder dissent:

"Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable 'variety and persistence' of laws disenfranchising minority citizens."

Hopefully this dilemma will be sorted out soon. Maybe Justice Ginsburg, who would likely write an opinion for a liberal-wing-plus-Kennedy coalition, could deal with this childishness in her opinion. 

But the George-Wallace-style throwbacks do not end with these pay-stripping bills. In a much more worrying development, Roy Moore, the Chief Justice of the Alabama Supreme Court, has declared open defiance of the federal courts in a letter he wrote to the governor following a decision overturning Alabama's ban on gay marriage. 

The point of Moore's letter is that the District Court's ruling is illegitimate, and that Alabama officials should not follow it. He proposed three policy actions: that Alabama probate judges should defy the Court and still refuse gay couples, that Moore himself will recognize the Alabama Constitution as superior to this ruling pursuant to the federal Constitution, and that the governor should do likewise in enforcing laws.

The premise of Moore's ideas are dubious. His whole argument is based on the assertion that "nothing in the United States constitution grants the federal government the authority to redefine the institution of marriage." He then goes on to quote a handful of sources illustrating marriage as a religious, man/woman covenant. He cites the Bible above all legal sources, showing his disregard for the spirit of church-state separation. 

The problem for the less-than-honorable Justice Moore is that the federal government does have the authority, not to "define" marriage per se, but rather to mandate who must be included in the right to marry. In Loving v. Virginia, the Supreme Court forced several unwilling states, Alabama predictably included, to grant marriage rights to couples of differing ethnicity. This is, as earlier expressed, a 14th Amendment issue. Surely the Chief Justice knows that the 14th Amendment grants the federal government the responsibility of ensuring equal protection by states. 

CJ Roy Moore

Roy Moore is most definitely not the first to propose state nullification of federal law. The down-home Southern tradition can be traced back to the so-called "Compact Theory" articulated by Thomas Jefferson in his 1798 Kentucky Resolutions. The Theory basically goes that the federal union was created by, and remains contingent upon, the consent of the several states; therefore, the states have the power to dismiss federal interpretation of the US Constitution if they see fit. While this 18th century theory is philosophically interesting and practically unfeasible, Jefferson's successors have followed it to its extreme implications.

The first instance that come to mind is the debacle surrounding the State of Georgia's forceful removal of the Cherokee in 1832. The Cherokee filed suit against Georgia in the Supreme Court, and the Court, led by John Marshall ruled that Georgia may not remove the tribe and ordered president Andrew Jackson to protect the Cherokee. Jackson, not known for being friendly to the natives, ignored the Courts decision, encouraging Georgia to proceed with its illegal ethnic cleansing. Jackson is quoted as saying "John Marshall has made his decision; now let him enforce it."

Everyone should know of the nullification crises, spearheaded by John Calhoun, that helped initiate the Civil War. Even in the modern era, the opponents of civil rights have used nullification as a last resort, most prominently when denying education to black Americans.

In 1954, Brown v. Board of Education was decided, and integration was ordered. Just as Roy Moore is urging the dismissal of federally mandated civil rights expansion, so did the politicians of the day. In 1962, the admission of James Meredith to Mississippi State University ("Ole Miss") caused massive riots that ended in the wounding of scores and murder of two people. Mississippi governor Ross Barnett personally blocked the entrance of Meredith into the university, an action which would almost earn him jail time. In the end, by order of the Kennedy administration, US Marshalls were deployed to ensure Meredith's safe admission.

And then there is the case of the Little Rock Nine, the first nine black students to attend Little Rock Central High School in Arkansas. Ridiculously named governor Orval Faubus made it his personal mission to prevent the admittance of these nine children, in disregard of the unanimous decision by the school board to integrate. The governor went as far as to completely eliminate Central School District for a year to that end. Apparently it would be better for no one to go to school than for black children to go to school. In the end, the moral arc of the universe found its way to justice, but not without the use of force. President Eisenhower had to send in the US Army to escort the nine to school.

People like Moore are definitely familiar with these events, and this makes it all the more disturbing for them to advocate for further nullification. What Moore is pushing is dangerous. There is precedent and cause for the use of military force in the protection of rights should Alabama and company persist in their rebellion. In the interest of internal peace for the nation, they must cease and desist their institutional bigotry in the wake of a positive ruling from the Supreme Court.

Karl Marx was clearly correct in saying that "history repeats itself: first as tragedy, then as farce."