Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how the Supreme Court must depend upon others to put its judgments such as the same-sex marriage decision into effect.
THE STATEMENT AT ISSUE:
“It is our understanding that same-sex couples are in fact being prevented from exercising their constitutional rights, as recognized by the Supreme Court in Obergefell v. Hodges. As of today, at least six counties in Mississippi (and perhaps more) are denying marriage licenses to same-sex couples.”
– Excerpt from a letter on July 1 by Roberta A. Kaplan, a lawyer for same-sex couples in Mississippi, to the U.S. Court of Appeals for the Fifth Circuit, urging that court to act quickly to clear the way for such couples to marry in that state.
WE CHECKED THE CONSTITUTION, AND…
When Alexander Hamilton wrote in Federalist Paper No. 78 that the national judiciary created by the Constitution would be “the least dangerous branch,” he explained that it has “no influence over the sword or the purse….It may truly be said to have neither force nor will, but merely judgment.” In fact, the court has awesome power to pronounce the law of the Constitution, but its declarations are not self-enforcing.
That is why, days after the court ruled that the Constitution requires states to open the institution of marriage equally to gay and lesbian couples, resistance and delay is still occurring in some of the 14 states where that right had not already been established – before the Obergefell decision -- by law, voter approval, or court rulings.
At this early point, there is no sign that the failure to implement the decision is equal to the “massive resistance” that had thwarted for decades, in some places, the court’s 1954 ruling in Brown v. Board of Education, ending racial segregation in the public schools. And the resistance is not as emotionally intense as the ongoing protests over the 1973 ruling in Roe v. Wade, establishing a woman’s right to an abortion.
The simple fact is that the Supreme Court must depend upon others to put its judgments into effect in real-life terms. For the most part, that means lower courts must issue implementing orders, if public officials do decide to resist one of the Justices’ rulings. In many counties in states where same-sex couples could not marry previously, clerks began issuing marriage licenses to same-sex couples just as soon as they learned of the Justices’ decision on June 26.
In some states, they did so because the state’s chief legal officer, the attorney general, told them they had to obey the decision. But some county clerks did not wait even for that guidance; they went ahead.
Lawyers for same-sex couples can speed the decision into effect, if they persuade a judge to issue an order doing so. That happened on Wednesday in Alabama, after some same-sex couples had been turned away when they sought marriage licenses. So, their lawyers went to a federal judge in Mobile, who had previously ruled in favor of same-sex marriage, asking for an implementing order. Their plea was on the judge’s desk for just a few minutes, and the judge then told all probate judges in the state – they issue marriage licenses in Alabama – that they no longer had any choice in the matter.
Lawyers for same-sex couples promptly put out word that, if a probate judge anywhere in the state turned down a license application from a same-sex couple, the judge would face contempt-of-court charges and potentially a new lawsuit seeking money damages.
Still, elsewhere in Alabama, the state Supreme Court said it would wait for advice from lawyers, seeing no need to act immediately.
On the day the Supreme Court ruled on the issue, each of the 14 states where same-sex marriage did not yet exist was facing a challenge in one of four federal appeals courts that had not yet ruled on the issue -- the First, Fifth, Eighth and Eleventh Circuits.
Right after the decision emerged, some states quickly notified the Circuit Courts that they would no longer resist, and would implement the marriage right promptly. Where that did not happen, the Circuit Court asked lawyers involved in the cases to file new legal papers, suggesting what the next move should be.
In the one federal appeals court that had ruled against same-sex marriage, the Sixth Circuit Court, the court’s website quickly posted the text of the Supreme Court’s decision, but that court took no further immediate action.
The courts at that level in the federal court system have the option of themselves ordering implementation of the Supreme Court decision, or else hand that task back down to the federal trial courts, the U.S. District Courts, where the cases challenging the marriage bans had originated.
A little-known fact is that the Supreme Court decision itself is technically not yet in full effect. Under the court’s rules, a ruling is not formally declared until a period of 25 days has elapsed, allowing time for a request to reconsider to be filed. Such rehearing requests are not filed very often, and they are seldom granted.
But state officials in a mood not to implement such a decision do have the option, if no lower court orders them otherwise, to just wait about three weeks before they know the option to resist no longer exists.
There has been another form of protest against the Justices’ ruling that does not involve an outright refusal to obey it, but an attempt to limit its effectiveness. In Louisiana and Texas, for example, high-ranking state officials have told county clerks that they do not have to issue marriage licenses if they have religious objections to same-sex marriage.
It is not clear how long or how effective that maneuver will be pursued. Indeed, lawyers for same-sex couples in Louisiana filed a new lawsuit in state court to challenge the religious objection directives issued by officials.
No doubt there will also be attempts in state legislatures to try to narrow the impact of the decision. There is no way to predict how long that reaction will take to play out.
