Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a move in the Texas state legislature that could test federal supremacy on the question of same-sex marriage.
THE STATEMENT AT ISSUE:
“The Supreme Court is poised to rule on whether there is a constitutional right to same-sex marriage or if states have the authority to define marriage as exclusively between a man and a woman, as the Texas Constitution does. If the court finds a universal right to same-sex marriage, that provision of the Texas Constitution would be swept aside. But a legislative ban on the issuance of marriage licenses could stand, resulting in a potentially costly and drawn-out confrontation between the state government and the federal courts.”
– Washington Post reporter Sandhya Somashekhar, in a front-page story in the newspaper on March 12, discussing a pending bill in the Texas state legislature to ban marriage licenses for same-sex couples – a measure that its sponsor hopes would set up a legal challenge to a potential Supreme Court ruling in coming weeks in favor of same-sex marriage.
WE CHECKED THE CONSTITUTION, AND…
It has been true, since Article VI was written into the Constitution in its original form in 1787, that a state legislature is without power to pass a law that contradicts the Constitution itself or federal laws enacted under the Constitution’s authority. That is the so-called “Supremacy Clause,” and the founding generation felt the need for that clause to protect the new nation against breaking up into a series of several states seeking to go their own way.
The supremacy of federal law would apply as fully to a contradictory state statute as it would to a clause in a state constitution. The state legislature in Texas this week is working its way toward a test of that federal supremacy, on the question of same-sex marriage – apparently, in anticipation of a possible Supreme Court decision early this summer that would give same-sex couples a right, under the Constitution, to get married. (The court is expected to decide that issue before it recesses near the end of June.)
The Texas bill, formally numbered H.B. 4105 as it originated in the lower house of the legislature, would contradict such a ruling by declaring explicitly that “this state or a political subdivision of this state may not use any funds to issue, enforce, or recognize a marriage license or declaration of informal marriage for a union other than a union between one man and one woman.”
Of special significance about that provision, though, is that it is designed to keep the state and its local governments involved in licensing marriages to some, but not all – by explicitly allowing such licensing only for opposite-sex couples. That is a form of direct discrimination in access to a public benefit, against those not in the protected group – that is, it would discriminate directly against same-sex couples who apply for a license to marry.
If the federal Constitution is implicated in that kind of discrimination, then it would not matter whether it was written into a state constitution or into a state statute, like the one being pushed in Texas as H.R. 4105. (The Washington Post story, quoted above, is simply wrong about their being a difference on that point.)
It might be arguable that a state, if it really wanted to have no part in carrying out a Supreme Court decision in favor of same-sex marriage, could simply stop issuing marriage licenses to anyone; in essence, it probably could simply abolish marriage as a government-sanctioned opportunity. (That, in fact, is an option getting some thought in some states.)
But it would hardly be acceptable politically in any state, one assumes, for the legislature to go that far. How would one maintain legal obligations in a couple’s commitment to each other without something like civil marriage? How would the legislature answer to all of the opposite-sex couples who had lost such a right to marry? Family law would become chaotic, indeed.
Texas legislators apparently realize that, and are pondering instead a move to keep Texas free only of same-sex marriages.
It is not hard to imagine the arguments that Texas would make in court trying to defend H.R. 4105 against a constitutional challenge by same-sex couples who had been denied access to a marriage licenses. One point the sponsors might make is that they are only cutting off funding; however, state spending priorities cannot be based on discrimination. A state, for example, could not cut off funding to a public school because it served students of a racial minority.
Another point that might be summoned is that there is no federal law that protects same-sex marriage, so the Texas provision does not actually violate the Supremacy Clause. That would be understood as an attempt to deprive a Supreme Court decision of binding force under that Clause. But it has long since been settled that a Supreme Court decision, of the kind that Texas is anticipating, is as much a “law of the United States” as would a legislative bill enacted by Congress.
If H.B. 4105 is actually enacted in Texas, it would be no time at all before a same-sex couple went to a county clerk’s office to get a marriage license, would be quickly rebuffed under the new state law, and would promptly file a request in federal or state court to challenge the law under a Supreme Court ruling (if such a ruling had come down). And it probably would be no time before such a judge, federal or state, would order that a license be issued. There would be very little chance – if any – that such an order would be blocked by a higher court.
In short, passage of H.B. 4105 very likely would not set off a prolonged constitutional fight between Texas and a Supreme Court mandate (if one comes) on the marriage question. One of the realities of the same-sex marriage question is that it actually comes down to an either-or proposition: that is, a legal right exists to marry, or it doesn’t. That is what the Supreme Court is considering.
There would be no realistic option for a legislature to tinker with access to that right, as state legislatures for decades have done with a right like abortion, which depends upon availability of practical procedures that can be limited or even thwarted altogether, or a right like voting, which depends upon specific election machinery that can be made expansive or narrow.
It may be that what the Texas legislators actually hope to accomplish is sending a message that they are spoiling for a legal fight.
