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Obergefell and the New Nullification

Perhaps we should add this affirmation to the orientation session for federal judges: The Supremacy Clause means the Constitution and laws arising under it outrank their state counterparts. It does not mean the judiciary is supreme over the coordinate national branches of government.

Judge David Bunning of the Eastern District of Kentucky did not quite assert the latter in ruling this week, correctly, that an elected county clerk cannot exempt herself from a decision, however errant, of the Supreme Court. He flirted with it, though: “Our form of government will not survive,” he wrote, “unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions.” Whoa, there.

The case, Miller v. Davis, involves Rowan County Clerk Kim Davis’ refusal, which persists in defiance of Bunning’s injunction, to issue marriage licenses to either same- or opposite-sex couples in the wake of Obergefell v. Hodges. She claims that licenses bearing her name would constitute her personal approval of same-sex marriage in violation of her Apostolic Christian beliefs.

Bunning is correct that a question of our form of government surviving is at stake, if in a distant and ultimate sense. But the question is not total obedience to the Court. It is, rather, the same question that arose under the Articles of Confederation: how to inhibit what Madison called the “centrifugal tendency” according to which states naturally incline to fly out of their orbits.

The ultimate issue of our form of government—a union—surviving is that states cannot be allowed either to defy the Constitution or to determine its meaning seriatim, an authority claimed by John C. Calhoun and conclusively refuted by both theory and force.

Davis—who has issued, to her staff, a county clerk’s order to defy a state order to comply with a national court order—is working out the full implications of Calhoun’s Disquisition, which purported to demonstrate the right of a state majority to concurrent authority with a national majority. But why not, on this reasoning, the concurrent majority of a county with the concurrent majority of a state? A voting precinct within the county with the county? And so on, and how, then, does a political community of any size or diversity cohere?

Davis claims a question of religious liberty is at stake. But she is an elected official who sought her office and took, as Bunning noted in invoking the Supremacy Clause, an oath to the federal Constitution. She does not possess a civil entitlement to the office for which she not only volunteered but campaigned.

It is entirely possible that Bunning, a George W. Bush appointee whose conservative credentials are in good order, personally objects to the implications of the ruling he issued. A religious liberty to avoid the law was unavailable to him.  Judges frequently must rule in ways that accord with the law but not their personal beliefs. If that discomfits them, they should find another line of work.

County clerks are little different, except that Davis’ duty involves less discretion (as Bunning observes, she is only asked to certify that marriage applicants meet legal requirements, not to endorse their unions) and therefore implicates her religious beliefs less directly. If Davis objects to the duties of her office, she can seek another one. (The religious liberties of private citizens who object to Obergefell are a different question and a fit subject of protection.)

To be sure, the nation is not going to fly apart over the question of the clerk of Rowan County, Kentucky, issuing marriage certificates. But a nation of local officials empowered to determine which edicts of the national government to abide cannot ultimately cohere, a fact that Davis’ fellow Kentuckian, Henry Clay, understood.

Still, to say state officials must abide by the Constitution once the nation has settled its meaning—a process that involves an interlocking dance of all three branches of the federal government, not just the judiciary—is different from saying our form of government somehow depends on everyone getting with the Supreme Court’s program. Congress and the President are not blindly bound to the Court’s decisions.

To be sure, at this point, the coordinate branches of national government have limited options for explicitly resisting Obergefell. Piecemeal resistance that empowers local officials to revive what amounts to nullification would be imprudent. As they ponder these constraints, members of Congress might contemplate the fact that their general policy of genuflecting before anything the Court says—indeed, using the Court as cover for decisions they prefer not to make—helped create the culture of judicial arrogance that produced a decision they now rue.

Reader Discussion

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on August 14, 2015 at 11:25:33 am

Of course all this may be (even sincere) posturing for campaign for another office.

Still, the answer is **so** simple.

The order of the District Court is upon the *function" of a County (via State) Office.
It is the function of the **office** that is at issue.

If an individual undertakes the duties of operating the functions of an office (public or private) they must comply with the requirements (not discretion) applicable to those functions - or - depart those duties.

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R Richard Schweitzer
on August 14, 2015 at 15:14:18 pm

"As they ponder these constraints, members of Congress might contemplate the fact that their general policy of genuflecting before anything the Court says—indeed, using the Court as cover for decisions they prefer not to make—helped create the culture of judicial arrogance that produced a decision they now rue."

Indeed! and it would appear that the truly operative phrase here (i.e., the most representative of the facts) is the phrase between the two hyphens.

As much as I disagree with Calhoun, perhaps, we would benefit from Representatives having even a modicum of political courage.

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gabe
on August 14, 2015 at 16:17:35 pm

To me, there is no subject matter jurisdiction for the court here. The equal protection clause properly understood requires that marriage licenses if they are issued to opposite sex couples, must be issued to same sex couples too. But the court was wrong to invoke the due process clause of the 14th amendment. What is the life, or liberty or property that is being taken by the state? This is where Thomas's dissent becomes very important. A state that provides licenses equally to both types of couples does not violate the constitution. Now if he has an obligation to issue licenses under state law, then they could sue, but it would be for mandamus in state courts to properly understand what duties are required by state law. Because the equal protection clause was not violated in this case (due to the refusal to provide licenses to ALL couples), nor were any due process violation occurred (because no life, liberty or property was taken), there is no subject mater jurisdiction for federal courts to enforce an injunction.

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Devin Watkins
on August 14, 2015 at 16:30:07 pm

When we are observing the operations of government whose principal functions have become the allocation of obligations and the delineations of relationships, does it really matter through which "branch" the powers for those functions are exercised?

Is that really what's at issue; or; is the issue the error in political theory for those functions to be undertaken by the powers assigned to governments?

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Image of R Richard Schweitzer
R Richard Schweitzer
on August 31, 2015 at 07:48:25 am

Those stands were taken under the colors of the Confederate battle flag. Confederate nullification philosophy for which they stood still stands.

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Reuben Bodi

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.