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In his post earlier this week, the redoubtable John Yoo took the position that Oregon Attorney General Ellen Rosenblum was within her rights in deciding that she would not defend Oregon’s same-sex marriage ban on the ground that “the ban cannot withstand a federal constitutional challenge under any standard of review,” including, of course, the low ‘rational basis’ standard.
In John’s view, Rosenblum is entitled to exercise her independent judgment on that question, and, so long as she believes that the state law violates the federal Constitution, she is free to act, as long as she continues to enforce the law as written until some judicial decision ratifies her view. That, of course, she has done. In dealing with this issue, John goes beyond Oregon and back to Abraham Lincoln. I too shall follow suit.
In dealing with this issue, John cites key passages from Lincoln’s first inaugural address, in which he states his view with respect to slavery and the Dred Scott decision. Lincoln’s view was that the decision of the Court was binding as to the parties, but that the President and the Congress were free to disregard it as a general matter if they believed that it offended constitutional principles. To Lincoln, the unflinching deference to Supreme Court decisions meant nothing less than the abdication of the political branches to the Court:
[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
There is, in this assertion, nothing less than a repudiation of that version of Marbury v. Madison that supports the institution of judicial supremacy, namely that the Court’s decisions are binding on the other two branches of government. In the context of Dred Scott, that result looks inviting. But as a general matter it is much more controversial. Here are some of the complexities:
I have little doubt that, as an originalist matter, Lincoln stated the correct accommodation. There is no evidence that the Framers thought that the Supreme Court was to be somehow outside the elaborate system of checks and balances that applied to every other branch. Article III specifies that “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” Those huge qualifications in the italicized words are inconsistent with judicial supremacy unless they are given a false and contrived reading to make the text confirm to the unstated presupposition.
For good measure, the same can be said about the Supremacy Clause, wherein a check against the United States Supreme Court is found the right of state judges to rule, without federal review, on the constitutionality of legislation under the federal Constitution. That is the natural reading of the last clause of this provision:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
Under the natural reading, the first clause states the supremacy of the Constitution and the second tells state judges to follow it, relying on their oath of office to keep them in line—all debatable propositions. This clause underscores the idea that the Founders did not think that the Supreme Court was the final, or even sole, arbiter of constitutional interpretation.
To Lincoln, it is a self-evident proposition to say that the people should have the last say on general laws. There is, of course, a huge fly in the ointment. His use of the term “people” makes it appear as if the public were united as one in their opposition to what the Supreme Court said. Clearly, they were bitterly divided. The hard point about democracy is that majority rule (or even minority contrivance) leads to the problem of faction, to which the Court could supply at least a partial answer, so that the overall situation is never as clear as Lincoln makes it out to be.
Indeed, suppose the tables were turned so that Dred Scott resulted in a decision in favor of Scott. Could a southern-dominated Congress then refuse to respect that decision? Could the Congress in 1954, after Brown v. Board of Education, continue to fund segregated schools in the South?
Given these hypotheticals, the problem of the lesser evil surges to the fore and, whatever we think to be the right answer, the most vital insight is that the ills of bad substantive decisions can’t be obviated with the magic bullet of structural responses.
This brings us to Attorney General Rosenblum. John is surely right that the stakes here are not as high as they were in Dred Scott. I also think that he is correct that the Attorney General has an independent authority to refuse to enforce laws that she, in good faith, thinks are unconstitutional.
My quarrel here is with how best to explicate that requirement. The issue here is not whether she thinks that there is no way to sustain the traditional ban on gay marriage even under the low rational basis test. The question is whether she can say with confidence that the Supreme Court is wedded to that position. I don’t think that can be done.
The decision in United States v. Windsor does not offer clear guidance insofar as it strikes down the Defense of Marriage Act on the ground that issues of domestic relations are normally left to the states. Indeed, the correct inference from that decision is that Oregon is entitled to go its own way on the issue, which it has. To be sure, the federal government has been busily expanding same-sex guarantees in the wake of Windsor, but those decisions, like so many others of Attorney General Eric Holder, are at the edge of the law, if not beyond it.
By the same token, I don’t think that she can take any comfort from the California decision in Hollingsworth v. Perry, in which Chief Justice Roberts ducked the substantive merits of same-sex marriage by arguing that no one hand standing to address this issue. If this is the state of play under the law, then there is no binding precedent pushing in the direction that Attorney General Rosenblum so obviously wishes to run. There is a lot of difficulty in any effort to use the rational basis test to overturn uniform traditional practices on strictly theoretical grounds. Perhaps that day will come, but until it happens I think that she is duty-bound to defend the law because I don’t see how anyone can maintain the argument that this issue is foreclosed.
I appreciate the awkward position in which Rosenblum finds herself. Indeed, the case for same-sex marriage is very strong from the kind of strong libertarian perspective on personal choices that receives uneasy reception in the Supreme Court. As a check on her own moral compass, Rosenblum might ask whether she thinks the same outcome should apply to polygamous marriages, where I suspect she would answer differently.
While there is no reason to question John’s limited major premise, the minor premise on the status of same-sex marriages is open to dispute, even by those of us, like myself, who favor complete legalization of the practice. The issue of knowing your role matters, however, and it is at that level that Rosenblum’s confident position falls apart.