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It looks like another state attorney general, this time in Oregon, is refusing to defend a ban on gay marriage. This is a controversial practice, but I tend to think that these AGs are acting within their rights so long as their good faith interpretation of the federal Constitution is that it prohibits states from barring gay marriage. While the Supreme Court’s most recent gay rights case (U.S. v. Windsor) didn’t include such a prohibition, it is difficult to see why the justices would treat state laws any different than the federal Defense of Marriage Act (a key part of which it struck down in Windsor). The rule is pretty simple: State officials are not bound to enforce state law that they believe violates the Constitution.
On this question, we can go back to the debate between Abraham Lincoln and Stephen Douglas, where — this probably won’t surprise you — I think that Lincoln had the better argument. Senator Douglas took the view that once the Supreme Court had decided Dred Scott v. Sanford, all officials were bound by the constitutionality of slavery. Lincoln took a different view. He believed that, as a Senator or President, he had the right to interpret the Constitution too. Lincoln believed, as I argued in my 2010 book, Crisis and Command, that he had an obligation to carry out a court’s judgment in an individual case (return Dred Scott to Sanford), but that he did not have to apply it as precedent to similar cases.Here is Lincoln’s view, from his First Inaugural:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.
At the same time, the 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. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
Of course, here Lincoln is making a more radical argument than the state AGs. The state AGs believe they are enforcing a Supreme Court decision’s reasoning against state law. Lincoln is arguing he can enforce his understanding of the Constitution at odds with the Court’s reasoning. But it seems to me that accepting Lincoln’s broader reasoning must support the state AGs’ actions here.Now, this also means that state AGs who have a good faith belief that the Constitution does not prevent states from banning gay marriage can continue to enforce the bans too. But state AGs may be prohibited by state law from acting contrary to state law, even in the face of the federal Constitution, until a state court finds that state law is at odds with the Constitution — that will depend on the state. In that case, an honest state officer should resign rather than carry out an unconstitutional law.