Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the ramifications of a call from a law professors and lawyers group for states to ignore the Supreme Court’s same-sex marriage decision.
THE STATEMENT AT ISSUE:
“We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hudges wherein the court decreed, by the narrowest of margins, that every state in the country must redefine marriage to include same-sex relationships….The opinion for the court substituted for traditional – and sound – methods of constitutional interpretation a new and ill-defined jurisprudence of dignity – one that abused the moral concept of human dignity….If Obergefell is accepted as binding law, the consequences will be grave….It cannot be taken to have settled the law of the United States….. We call on all federal and state officeholders to refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case….[and] to recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions….[and] to open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evident in Obergefell.”
– Excerpt from a “Statement Calling for Constitutional Resistance to Obergefell v. Hodges,” signed by 64 legal academics or attorneys and issued on October 8 by the American Principles Project, a tax-exempt think tank based on Washington, D.C., and founded by one of the signers of the statement, Princeton University law professor Robert P. George.
WE CHECKED THE CONSTITUTION, AND…
Like all Americans, law professors and lawyers share the right of free speech under the First Amendment. That includes the right to be deeply critical of what the Supreme Court does on a controversial issue. Legal academics and attorneys, however, have to ask themselves how far that right extends, when they openly urge others to defy Supreme Court decisions. The answer is not obvious.
Unlike those who pursue other walks in life, an individual entering a legal career takes on public responsibilities. They cannot be admitted to a bar unless they take an oath to defend the Constitution and to serve as officers of the courts where they might appear. If called upon by a court to do so, they must take on the defense of an individual in a criminal case, even if they believe that the person is surely guilty.
Like those who work in some other professions, lawyers must abide by a code of professional conduct that can even limit their rights of free speech, as a Michigan lawyer discovered a few years ago when he was punished after publicly calling a panel of judges “Nazis” and “jackasses.”
If a lawyer believes that a court, any court (including the Supreme Court), has gone wrong, what is he or she to do? If they are serving as a judge themselves, they have little option but to accept the ruling and apply it in cases before them, however much they find the ruling offensive to their own sense of right and wrong. (That obligation is getting some testing these days, especially in Alabama, where the state Supreme Court has been asked by two lower-court state judges to openly defy the Supreme Court’s same-sex marriage decision.)
Lawyers, as lawyers, definitely are free to volunteer to represent anyone who wants to challenge a court ruling as it might apply to that person and, in the course of that task, seek to have such a ruling overturned at some point in the future. They are free, too, to join in public criticism of such a ruling, and to argue (within some ethical limits that are rather vague) that it has no basis in law.
They know, of course, that courts do not usually have any means to defend themselves against their public critics; some courts have press agents but they, too, are inhibited by expectations of decorum like those a judge must observe. Courts either simply stay out of public dialogues, or are content to let lawyers who are members of their bar stand up for them.
The ethical restraint that is supposed to keep a lawyer in check as an adversary of the courts may be sorely tested if, acting as legal professionals, they join in or originate a campaign to treat a Supreme Court ruling as non-binding across the country in all similar cases, and thus advocate explicitly that it be defied.
In that situation, what does the ethical obligation to “defend the Constitution” mean? Lawyers know that the Supreme Court, as long ago as 1803, declared that it is the duty of courts to say what the Constitution means. And they know that it is now accepted, very widely if not universally, that a Supreme Court decision does not apply only to those parties directly involved in that case, but dictates the outcome when the same issue arises in a new case. That is what is known as respect for precedent.
The recent declaration by five dozen legal scholars and attorneys that “all federal and state officeholders” should treat the Justices’ same-sex marriage decision as not binding beyond the specific couples involved is an illustrative – and provocative -- case. After roundly criticizing the decision in Obergefell v. Hodges as lawless, and outlining a campaign of resistance by those who hold public office, the statement asserted that “the course of action we are here advocating is neither extreme nor disrespectful of the rule of law.”
It is appropriate to note that, among the statement’s recommendations, is a national dialogue “on the means by which Americans may constitutionally resist and overturn” the Obergefell decision. If the means taken to resist are, indeed, constitutional in nature, and if the ultimate goal is to get the decision reversed, this statement may imply a desire for an amendment to the Constitution, or a plea to elect a president who would name Justices who would overturn the decision.
In the meantime, however, some officeholders, if they do take the advice given in this statement and use their public authority to continue enforcing bans on same-sex marriage, may well find themselves in contempt of courts that do accept that decision as binding. A county clerk in Kentucky provides a recent example.
