Huckabee: The Supreme Court can't legalize gay marriage unless state legislatures agree

Via Hugh Hewitt and the Washington Times, I’m … pretty sure this is wrong.

“One thing I am angry about … is this notion of judicial supremacy, where if the courts make a decision, I hear governors and even some aspirants to the presidency say, ‘well, that’s settled’ and ‘it’s the law of the land.’ No, it isn’t the law of the land,” he said. “Constitutionally, the courts cannot make a law — they can interpret one and then the legislature has to create enabling legislation and the executive has to sign it and has to enforce it.”

Mr. Huckabee said that “this idea that a judge makes a ruling on Friday afternoon and Saturday same-sex marriage licenses are being given out — that’s utter nonsense because there’s not been any agreement with the other two branches of government.”…

“States would be in a position where their legislatures would have to go into session — they would have to create legislation that the governor would sign,” he said. “If they don’t, then there is not same-sex marriage in that state. Now, if the federal courts say, ‘well, you’re gonna have to do it,’ well, then you have a confrontation. At that point, somebody has to decide, ‘is the court right?’ If it is, then the legislation will be passed.”

It’s true, sometimes a court will declare an element of state law unconstitutional and then invite the legislature to propose a remedy rather than provide one of its own. For instance, if a judge finds that elements of the state prison system amount to cruel and unusual punishment, his ruling might give the state government 90 days, say, to come up with changes. The policymaking branches of government have more experience (and more resources) in crafting policy, and they can judge better than the court can what the state can and can’t afford to do on its budget. All the court says is “you can’t do what you’re doing now.”

You see that with complex policy areas like prison reform or school desegregation. Huckabee wants to apply the same model to gay marriage in case SCOTUS decides that laws that limit marriage to one man and one woman violate the Equal Protection Clause. As Huck sees it, the Court will issue its ruling and then the state legislature will come back into session and … do what? There’s nothing they need to do, or really can do, legislatively to comply with the Court’s ruling. Once their traditional marriage law has been ruled unconstitutional, it’ll be useless in court or at the local clerk’s office as grounds to deny gay couples a marriage license. Alabama kept its law banning interracial marriage on the books until 2000, when it was repealed by referendum, but that law had been unenforceable since 1967, when the Supreme Court issued its decision in Loving v. Virginia. The same will be true of traditional marriage laws after this ruling. A state could, I guess, react to the decision by abolishing its marriage laws entirely, but (a) that won’t go over well with the state’s straight married couples and (b) the Supreme Court has ruled many times that marriage is a fundamental right guaranteed by the Due Process Clause. A state probably couldn’t refuse to recognize a traditional marriage (and, soon, a gay marriage) between two of its citizens even if it wanted to.

Hewitt, a con law professor, understands all this. That’s why you find him prodding Huckabee near the end here about the Supremacy Clause. If the U.S. Constitution is the supreme law of the land and the Supreme Court says that the Equal Protection Clause means X, then state governments are going to be living under a regime where X is the law whether they like it or not. I think Huckabee understands it too: Governing a state for 10 years, you’re apt to pick up the basics of constitutional law. What he’s really doing here in imagining a “confrontation” with the Court, I take it, is implying that state employees should respond to SCOTUS’s ruling with forms of civil disobedience. The state legislature could re-pass a law limiting marriage to one man and one woman, even though it’ll be unenforceable. County clerks could decide, in Huck’s words, that the Court isn’t right and then quit their jobs in protest. None of that’s going to happen on a mass scale but it benefits him politically to float the idea. Most of the GOP’s 2016 field will take the view that the gay-marriage issue is now, regrettably, settled; Huckabee needs to show social conservatives that he’s still fighting. One way to do it is to back the Federal Marriage Amendment, but no one thinks that’s going anywhere and, even if it was, it’d take many years to build enough support for ratification. Another way to do it is to demand that Republican candidates pledge to support anti-SSM judges to reverse the Supreme Court’s ruling, but that’s also a multi-year project and it depends first and foremost on winning in 2016. The only *immediate* action that could be taken against SCOTUS’s decision would be civil disobedience and a constitutional crisis in which states simply refuse to follow what the Supreme Court says. Will, say, Ted Cruz go along with that? Iowans are watching.

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