Huckabee And Carson: States Can Refuse To Comply With Supreme Court Rulings On Marriage

Two Republican candidates for President say that Republican elected officials should simply ignore the Supreme Court if it strikes down bans on same-sex marriage.

Same Sex Marriage Supreme Court

Republican Presidential candidate Ben Carson has a solution for social conservatives who are dreading the possibility that the Supreme Court will issue a ruling striking down state-law bans on same-sex marriage, he’s telling them that we can all just ignore the Supreme Court:

Republican presidential candidate and tea party favorite Ben Carson said in an interview with Newsmax that the President of the United States doesn’t have to follow the Supreme Court if the high court were to rule in favor of same-sex marriage.

“First of all, we have to understand how the Constitution works. The president is required to carry out the laws of the land, the laws of the land come from the legislative branch,” Carson said on Tuesday. “So if the legislative branch creates a law or changes a law, the executive branch has a responsibly to carry it out. It doesn’t say they have the responsibility to carry out a judicial law. And that’s something we need to talk about.”

Carson’s comments follow the Supreme Court in April beginning to hear arguments in Obergefell v. Hodges, which concerns bans on same-sex marriage in Kentucky, Ohio, Michigan, and Tennessee. The nine justices seemed to split along party lines in the early arguments. If the high court were to rule with the plaintiffs, gay marriage bans across the country could be wiped out in one single wave.

Carson, as Right Wing Watch which flagged the Newsmax interview noted, has signaled support for impeaching judges who favor same-sex marriage.

Carson isn’t alone in taking this position, either, because Mike Huckabee said pretty much the same thing during an interview on Hugh Hewitt’s radio show:

Former Arkansas Gov. Mike Huckabee said the Supreme Court’s coming decision on same-sex marriage won’t be the final say on the matter, indicating the issue could still be front and center in the 2016 GOP presidential primary contest if Mr. Huckabee ultimately enters the race.

“I may be lonely, I may be the only one, but I’m going to stand absolutely faithful to the issue of marriage,” Mr. Huckabee said on radio host Hugh Hewitt’s show. “Not because it’s a politically expedient thing to do, [because] it isn’t. I’m going to do it because I believe it is the right position, it’s the biblical position, it’s the historical position.”

(…)

Mr. Huckabee said the high court’s decision still wouldn’t necessarily be the final word.”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 .”

He contended that state legislatures and governors would have to act.

“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.”

Huckabee made similar comments earlier this week during an interview with Steve Deace, a prominent conservative talk radio host in Iowa:

In Letter from a Birmingham Jail, Martin Luther King, Jr. makes the case there comes a time when people of conscience have a moral obligation to practice civil disobedience against “unjust laws.” Do you agree with that? For example, is there anything a court could try and impose upon you as a president that you morally would refuse to comply with?

Dr. King’s letter quoted extensively St. Augustine, who developed the doctrine of just and unjust laws. And the necessity to not abide by unjust laws, which as Augustine and King both concurred, “Are not laws at all.” Court decisions that defy the Constitution, or the laws of nature or nature’s God, do not constitute a legal or moral obligation to comply. In addition, the Constitution doesn’t recognize a court—any court, including the Supreme Court—as having absolute power to make a law. In fact, the false doctrine of “judicial supremacy” is in itself unconstitutional, and defies the balance and separation of powers clearly outlined in our law. Unless the people’s representatives pass enabling legislation and a president signs and agrees to enforce it, there IS no law.

Both Carson and Huckabee are, of course, entirely wrong here.

While it is true that, at times, courts at the Federal and state level have ruled in a way that leaves it open to the legislature to craft a remedy, this does not mean that courts are without power to enforce their rulings. For one thing, when courts do defer to the legislature in this manner it is usually to give that body an opportunity to fix a defect in the law before the court steps in and rules on the matter itself. This has happened in the case of school desegregation, rulings regarding tax and fiscal issues at the state level, and in other areas that involve complex issues of public policy. It has also happened in some same-sex marriage cases at the state level, in Massachusetts and New Jersey, for example, where the Courts initially gave the legislature the opportunity to craft a remedy such as civil unions before handing down an all-encompassing ruling. Even in then, though, the court made it clear that it would step in again if the remedy the legislature crafted proved to be insufficient to meet the constitutional objections it had found. This is, ultimately, what happened in New Jersey.

This isn’t the only way that a Court can enforce its rulings, though, and its hardly the most common. In most cases, if the Court finds that a state or federal law unconstitutional, it issues an injunction barring the enforcement of the statute and, in most cases, requiring state officials to act in a certain manner based on the Court’s ruling. In those cases, the legislature is always free to go back and amend its laws to bring them into compliance with the Court’s rulings, but that is not necessary to bring a court’s rulings into effect. Instead, what happens is that the offending statute remains on the books but entirely unenforceable. For example, the Supreme Court struck down bans on interracial marriage in 1967 but it wasn’t until a referendum in 2000 that the State of Alabama actually removed its laws banning those marriages from the books. More recently, the Court’s decision in Lawrence v. Texas, which struck down state laws criminalizing sodomy, but many states still have those laws on their books even though they cannot be enforced.

If a state official refuses to comply with a courts rulings in these types of cases, or seeks to enforce a statute that has been declared unconstitutional, then the Court has the legal authority to issue further rulings seeking to enforce its rulings. This was, of course, quite a common practice during the Civil Rights Era due to the fact that government officials in the south and in other parts of the country were refusing to comply with Court rulings on school desegregation and other issues. In more than one case, of course, this required the Executive Branch to assist the Court in enforcement of its orders, such as when President Eisenhower sent Federal troops to Little Rock and Federalized the Arkansas National Guard in order to enforce court rulings on desegregation. Ultimately, the state officials seeking to defy the Supreme Court’s rulings on this issue found that they had no option but to comply, although the presence of Federal troops on their streets was no doubt highly persuasive in that regard. Whatever the case, though, state officials who purported to ignore the Supreme Court’s ruling on same-sex marriage would quickly find themselves in the same position as Orval Faubus, George Wallace, and others who thought they could get away with ignoring Court orders.

It would be easy to dismiss these comments as pandering on the part of Carson and Huckabee and, to a large degree, that’s exactly what they are. At the same time, though, it’s worth noting that what they are talking about is not something theoretical. It is something that has happened in our nation’s past, and is happening right now. Just earlier this year, for example, when a Federal District Court Judge in Alabama struck down that state’s ban on same-sex marriage, Alabama Supreme Court Chief Justice Roy Moore, who has a long history of defying Court orders, told the state’s Probate Judges that they must defy the Court’s ruling, a proscription that many of them chose to disobey. In response to that, the Alabama Supreme Court, led by Moore, issued a ruling that essentially said that the Constitution doesn’t apply in Alabama. The final disposition of the situation in Alabama is up in the air pending what happens in the Supreme Court, but if the Justices rule as expected you can expect this issue to revive itself not just in Alabama, but potentially also in others deeply conservative states such as Mississippi and Louisiana.  It’s clear what will ultimately happen, of course, but that doesn’t mean we won’t see people take the nonsense that Huckabee and Carson are spewing and seek to actually bring it about.

FILED UNDER: Campaign 2016, Law and the Courts, Tea Party, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. gVOR08 says:

    In response to one of Pinky’s “Miss Manners” comments in the Santorum thread, I remarked that the only appropriate way to respond to these people is to point and laugh. Commence.

  2. J-Dub says:

    Ultimately, the state officials seeking to defy the Supreme Court’s rulings on this issue found that they had no option but to comply, although the presence of Federal troops on their streets was no doubt highly persuasive in that regard.

    Jade Helm 15 anyone?

  3. C. Clavin says:

    I don’t think they are pandering.
    I think that….neurosurgeon or not…they’re stupid.
    It’s the same mis-guided thinking that says let the states decide. Well, what does it matter what the states decide to do…if it’s un-constitutional?

  4. Gromitt Gunn says:

    Perhaps they are merely confused, and believe that the US follows a civil law framework rather than a common law framework. I suppose it is possible that they both got their law degrees in Louisiana.

  5. Hal_10000 says:

    Holy crap, Huckabee actually quoted King’s letters? Because a state having to marry two men is totally like segregation I guess.

    This is a good sign. Bear with me here for a moment. When a movement collapses, there is an “evaporative cooling effect” where the few remaining adherents grow more and more hysterical. For example, in the satanic child abuse panic of the 80’s, the claims of satanic conspiracies reaching their maximum insanity right before the entire thing imploded. We’ve now reached that point. Comparing yourself to MLK and calling for civil disobedience is the last stand.

    Over a third of Republicans now support legal gay marriage (similar to Democrats about a decade ago) and the polling is trending sharply upward, especially among younger Republicans. Many of the rest just don’t care anymore. The sensible Republicans are either for it or backing away from it. This is the last shriek of a dying cause. The issue is dead. By 2020, it will be buried.

  6. al-Ameda says:

    This means that Mike and Ben will have to get married in Vegas, I suppose.

  7. grumpy realist says:

    If anyone wants to know what happened to that crazy lady in Nebraska, what we all expected:

    (I especially like the fact that the judge didn’t allow her to amend her complaint. In other words, “you’re friggin’ nuts, lady, and I’m not going to allow you back in my courtroom”)

  8. C. Clavin says:

    A new poll says that Americans would rather have a gay President than a christian evangelical President.
    Sorry Mike.

  9. gVOR08 says:

    @C. Clavin: The odds would suggest we have had one. We just didn’t know it.

  10. CSK says:

    @gVOR08:

    There were rumors about James Buchanan at the time.

  11. Another Mike says:

    It’s clear what will ultimately happen, of course, but that doesn’t mean we won’t see people take the nonsense that Huckabee and Carson are spewing and seek to actually bring it about.

    It sounds like a rebellion to me, and unlike the last rebellion, the rebels will be the righteous ones.

    I have a feeling though that the court has seen the vision and is going to hand this live wire back to the states.

  12. Gromitt Gunn says:

    @Another Mike: Are you sure don’t mean self-righteous?

  13. HarvardLaw92 says:

    @Another Mike:

    I have a feeling though that the court has seen the vision and is going to hand this live wire back to the states.

    If they were headed in that direction, they would have granted cert, early in the game, on any of the several affirmative circuit rulings which they declined to review. I think you are going to be in for a disappointment.

  14. mike shupp says:

    And NOBODY had the wit to ask these guys where they stood on Loving vs Virginia? Where has the fun gone in our political discussions?

  15. de stijl says:

    @mike shupp:

    They were obviously against miscegenation / mixed-race marriage because that was God’s Will, and it was eternal. Until the polling turned negative and then really, really negative and they decided to never bring it up IN PUBLIC again. (Private discussions are another matter.)

    Religious orthodoxy and tradition has changed, if not entirely transformed, but been entirely muted, on so many topics in my lifetime, I may not have an accurate count. Contraception (orthodxy remained the same if you were Catholic but noncompliance became DADT, but nearly universal), White Evangelical Protestants went from “meh” to “Hell, No!”, Mainline Protestants went from “meh” to “Hell, meh” (keep us the Hell away from this mess). Abortion followed the same path, although the dissenters are much more outspoken and legislatively successful.

    Besides the aforementioned miscegenation issue there is: Segregation, civil rights, voting rights, masturbation, divorce / remarriage, cohabitation.

    The Southern Baptists exist as a separate entity solely because of resistance to civil rights for black Americans.

    What am I forgetting? I guess dancing and gambling if you’re a Baptist. Protestant / Catholic relationships and intermarriage (which, arguably was fairly faint in my youth, but it was a Big Freaking Deal to people my parent’s age).

    Arguments to little o orthodoxy and religious traditionalism are a dodge. They are a dodge to cover prideful and hateful thoughts about The Other. Those arguments used to work and used be paramount because no one was willing to object for fear of social shunning / banishment. Those arguments no longer work (Thank God).

  16. de stijl says:

    @de stijl:

    I buried my argument.

    No widely read orthodox or traditionalist pundit or popular speaker has said anything about anything as to changes to public policy in regards to contraception, miscegenation, segregation, masturbation, divorce / remarriage, cohabitation, or equal civil rights since the turn of the century. And if they do, it is always as the sausage casing on the anti-SSM / anti-gay rights argument.

    Religious “tradition” and “orthodoxy” are fluid. And have become much more fluid in the last 50 years.

  17. DrDaveT says:

    @de stijl:

    What am I forgetting?

    Women’s rights. It’s a very rare church indeed that holds hard to I Corinthians 14:34 these days. More generally, Christian women are no longer expected to be entirely submissive to their husbands (Ephesians 5:22, Colossians 3:18) etc.

  18. Lenoxus says:

    @Another Mike:

    It sounds like a rebellion to me, and unlike the last rebellion, the rebels will be the righteous ones.

    I find it refreshing that someone can be among the few remaining same-sex marriage opponents without being an “It wan’t about slavery!” Confederate sympathizer.

    Obviously there’s no logical contradiction, but, you know…

  19. de stijl says:

    @DrDaveT:

    Women’s rights.

    Good call.

    If I were to plead male privilege as my defense, it doesn’t really look any better, does it? Ouch!

  20. de stijl says:

    @Another Mike:

    I have a feeling though that the court has seen the vision and is going to hand this live wire back to the states.

    The 14th applies to the states, does it not?

    Nullification and the South go together like grits and shrimp, like sausage gravy and biscuits.

  21. Another Mike says:

    @de stijl:

    The 14th applies to the states, does it not?

    The point is that a man marrying a man is not similarly situated to a man marrying a woman. Because the two things are not similarly situated, they are not equal under the law. The issue of equality and the 14th Amendment does not apply. That is why I am thinking that the court will say that it is the states which determine what shall be marriage. This would be a very prudent course for the court to take. It would spare the court and the country untold misery.

  22. Neil Hudelson says:

    @Another Mike:

    Considering the recent history of the Supreme Court–their most recent rulings on DOMA, their passing on earlier cases in which they could have easily passed this back to the states, and their passing on cases with the knowledge it would confirm circuit court rulings in favor of marriage equality–what about all this history makes you think they are going to pass this back to the states?

  23. Another Mike says:

    @Neil Hudelson:

    what about all this history makes you think they are going to pass this back to the states?

    I think the court has finally come to understand the havoc it will reek on children and on religious liberty. The think the court finally sees the end results of its past legal games and amateur philosophizing. It is not the work of the court to create a new moral sexual code for society.

  24. de stijl says:

    @Another Mike:

    The point is that a man marrying a man is not similarly situated to a man marrying a woman. Because the two things are not similarly situated, they are not equal under the law. The issue of equality and the 14th Amendment does not apply.

    What exactly is your argument here?

    “Is not similarly situated…”

    Please elucidate.

    One class of people can be civilly, legally married, one cannot. How is this not unequal? If black people were able to be legally married in the eyes of the state, but white people were not would they also be not similarly situated as you’ve stated? If not, why not?

    It is not the work of the court to create a new moral sexual code for society.

    It is the work of the court that citizens are treated equally under the law.

  25. Another Mike says:

    @de stijl:

    What exactly is your argument here?

    “But for the children, there would be no need for any institution concerned with sex.”

    A penis and a vagina might make a child, but a penis and a penis or a vagina and a vagina can never make a child.

    That’s the first half of the argument, the right of a child to be raised by his biological parents, if at all possible, is the second half of the argument.

    More than that need not be said.

  26. HarvardLaw92 says:

    @Another Mike:

    Yet again, we do not condition access to civil marriage on either the ability to or the intent to procreate, so that’s a specious first-half argument.

    I’d be interested to hear how allowing homosexuals to marry one another prevents a child, any child, from being raised by his/her biological parents.

    Much more than what you are saying needs to be said if you want this line of argument to be taken seriously.

  27. HarvardLaw92 says:

    @Another Mike:

    The point is that a man marrying a man is not similarly situated to a man marrying a woman. Because the two things are not similarly situated, they are not equal under the law. The issue of equality and the 14th Amendment does not apply.

    You know this is a specious line of reasoning, and I know that you know because we’ve had this discussion in depth at least once already.

    Equal protection presumes that ALL two party couples who are under the jurisdiction of the US Constitution and who are seeking access to the voluntarily created legal construct of civil marriage have an equivalent right of access to it, both under the implied equal protection grant of the 5th Amendment at the federal level and under the explicit equal protection grant of the 14th Amendment at the state level.

    It’s not up to the couples to demonstrate why they should have access to civil marriage. It’s up to the state to advance a legally sufficient rationale for denying it to them. Thus far, they have failed to do so, primarily because their arguments have been grounded in animus (which is a no no) or they advance specious claims about matters which will be unaffected by allowing homosexuals access to marriage (which, IMO, are little more than attempts at introducing window dressing for animus.)

    For example, it’s ludicrous to assert that heterosexuals, myself included, will marry at any less of a rate, have children at any less of a rate, raise those children together at any less of a rate, grow old together at any less of a rate and pass on our assets to our children at any less of a rate as a consequence of homosexuals being allowed to marry.

  28. DrDaveT says:

    @HarvardLaw92:

    @Another Mike: Yet again, we do not condition access to civil marriage on either the ability to or the intent to procreate, so that’s a specious first-half argument.

    Another Mike cannot hear this argument, possibly because he has his fingers in his ears and is chanting “La la la”. He is not a logician; the fact that procreation is neither necessary nor sufficient for marriage cannot shake his conviction that it is, nevertheless, the one key defining factor.

    Of course, with modern technology homosexual couples can procreate just as easily as many heterosexual couples. I doubt that Another Mike considers this an improvement that resolves the problem…

  29. HarvardLaw92 says:

    @DrDaveT:

    He has heard it from me at least twice before today, but refuses to accept it. I think that has more to do with the inability to adapt moral disapproval than it has to do, or will ever have to do, with logic.

    He evidently thinks that the law should function as a tool for the enforcement of prevailing – or in this case preferred – subjective morality. That’s obviously specious.

  30. Franklin says:

    Thinking about the argument that “every child has a right to be raised by their biological parents.” I’ll ignore the cases where one of the parents is a rapist, etc., and concentrate on how gay marriage affects this. I don’t see how it does. IVF is currently legal, meaning any woman, straight or gay, can have a child by any man willing to donate sperm. Unless I’m very much mistaken, there are impotent men in marriages where they chose to have children anyway. So unless Another Mike is proposing to ban that (which has nothing to do with gay marriage), I can’t figure out what he’s talking about.

    EDIT: OK, maybe he’s just suggesting that every child has a right to be raised by a mom and a dad. Which he didn’t say, so I’ll have to assume it. In that case, he’s going to have to provide more information about the ‘why,’ rather than leaving us guessing.

  31. Another Mike says:

    @HarvardLaw92:

    He evidently thinks that the law should function as a tool for the enforcement of prevailing – or in this case preferred – subjective morality.

    Once the Divine is removed, it is all subjective. Even your concept of objective harm fails the test.
    But as you say, we have been over this before, and now the court has heard the case, and we are awaiting a ruling. In consideration of all this, and having had my say, I will let the issue rest, at least for now.

  32. HarvardLaw92 says:

    @Another Mike:

    Canon law functions within your own life (to the extent that you enforce it upon yourself), the church and a tiny little plot of land in the middle of Rome. Our society is governed by secular law.

  33. HarvardLaw92 says:

    @Another Mike:

    And I apologize if I came across harsh above. I didn’t intend to. This is just a matter of secular law, so it has to be approached from that perspective. I get that it doesn’t jive with religious belief, and I understand why that is a problem for many people, but it has to be evaluated within the context of our secular legal system.

  34. Another Mike says:

    @HarvardLaw92:

    And I apologize if I came across harsh above.

    I never have been offended by honest discussion, and certainly not by you. I have never argued from religion, because that is rejected outright by most opponents. Even the Church argues from right reason and the natural law against homosexual marriage and not from divine revelation.

    I do believe that once God is removed, everything becomes subjective and in the end power prevails.

    Unspeakable Ethics, Unnatural Law
    http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2724&context=dlj

    Most of this escapes me now, but it seemed to make sense when I first read it.

  35. Grewgills says:

    @HarvardLaw92:
    I think that works in the same way that gay marriage supposedly leads to 900,000 more abortions. These people cannot be parodied.

  36. Tyrell says:

    I would like to see the Supreme Court judges get out of their robes, chambers, and courtrooms to talk to the people. This could be done through talk shows, town hall type meetings, press conferences, and special assemblies. The people need to hear more about how they arrive at certain verdicts, their opinions about issues, and things they would like to see change. The people could ask them questions about issues and some of their decisions. I would like them to appear on tv regularly to discuss famous crimes and trials. Such as: the Booth conspirators trial – the only trial in US history of private citizens carried out in a secret military tribunal. What secrets were they kept from telling ? The most famous mystery of all: Jack the Ripper. Who do they think that he was ? The Lindbergh kidnapping: the man executed, Hauptman, could not have acted alone. The Nuremburg war trials: what would they have decided ? James Earl Ray: was he set up ? Jack Ruby: silenced before he could talk. Jon Benet Ramsey: who do they think killed her ?
    Too often the judges make decisions in a vacuum and then issue a vague opinion. They should get out and find out what the people think.

  37. Lenoxus says:

    Mr. Huckabee said the high court’s decision still wouldn’t necessarily be the final word.”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.”

    Suppose a state passed a law banning all private firearms possession. Presumably this would require the Supreme Court to overrule such a law and impose its own will, in accordance with the second amendment (at least given the common interpretation of it). On what grounds would Carson, Huckabee and others justify that happening? This hypothetical state might have a governor and legislature unanimously in favor of their ban. Huckabee’s own principle means everything has to happen with their cooperation. Under these terms, how does the Constitution get enforced?

    It’s one thing to interpret the Constitution differently than lower courts have and say that no right to marriage equality is to be inferred from it. That’s a legitimate position. But these people are arguing against the very notion that a law can be overturned. This fills me with hope, since it suggests that rather than confidently place their money on marriage laws being left to the states, they expect a total overturn to be the outcome, and are preparing their arguments accordingly.

  38. wr says:

    @Another Mike: My penis has no intention of creating a child, and it has plenty of other intentions. None of which are the slightest bit of your business, or the government’s or any right wing panty sniffer who feels free to control the most intimate parts of our lives.

    You go tend to your penis and stop worrying about mine.

  39. de stijl says:

    @Tyrell:

    Why would the Supreme Court justices know anything about any of the situations you wrote about? Why would they care? Why should we care?

    Do you believe that there is some special, secret ceremony where a new SCOTUS justice is paddled and then the “secrets” are shared like who really killed Jon-Benet Ramsay?

    Your conspiratorial bent is fascinating.

  40. Liberal With Attitude says:

    @de stijl: Thanks for the mental image of Scalia inducting Ginsberg into the secret club..

    No amount of brain bleach can get that outta my head now.

  41. Tyrell says:

    @de stijl: These judges are supposed to be the top legal minds. Their thoughts and opinions on these and other famous cases would be interesting.

  42. J-Dub says:

    @Tyrell: Don’t they publish all their opinions on the cases before them? You are free to read them if you need to be cured of insomnia.