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.


Confession 1

Breaking Faith

Religious liberty is not a trump card that wins every time, but interference with clergy-penitent privilege will do no good and may produce real harm.