GOPers Vow To Defy SCOTUS Over Gay Marriage

The New Nullification Crisis: GOPers Vow To Defy SCOTUS Over Gay Marriage

ByTIERNEY SNEEDPublishedJUNE 16, 2015, 6:00 AM EDT 19527 Views
Ahead of a potentially historic Supreme Court ruling, leading Republicans are vowing to defy any decision that sanctions same-sex marriage and are challenging the very legitimacy of the high court.

With a decision in Obergefell v. Hodges expected before the end of June, conservatives are confronted with what was only a few years ago a nearly unthinkable possibility: a Supreme Court decision that decisively makes same-sex marriage a constitutional right.

Fearing a huge setback to their cause, opponents of same-sex marriage, including some of the major contenders for the 2016 GOP presidential nomination, are darkly warning that they will not “honor” an adverse Supreme Court decision. Some are calling for civil disobedience. Others are moving to strip the Supreme Court of its authority to decide whether gay couples should be allowed to marry, while others have questioned whether the court has that jurisdiction in the first place. Sen. Ted Cruz (R-TX) has said that such a decision would be “fundamentally illegitimate.”

Those who are merely calling for a new constitutional amendment to enshrine marriage as between one man and one woman now seem almost quaint in their desire to use the ordinary constitutional process to counter the Supreme Court.

Here are some of the leading proponents of the new nullification:

Rick Santorum
Former Sen. Rick Santorum, on NBC’s Meet the Press last month, vowed to fight a Supreme Court decision in favor of same-sex marriage: “We’re not bound by what nine people say in perpetuity.”

“I think it’s important to understand that the Supreme Court doesn’t have the final word,” Santorum told viewers. “It has its word. Its word has validity. But it’s important for Congress and the president, frankly, to push back when the Supreme Court gets it wrong.”

Santorum is among the signers of the anti-gay marriage pledge being circulated by a group associated with the website DefendMarriage.Org. The group recently placed a full-page ad in The Washington Post with an open letter to the Supreme Court promising civil disobedience if the court struck down bans on gay marriage.

“We will not honor any decision by the Supreme Court which will force us to violate a clear biblical understanding of marriage as solely the union of one man and one woman,” the letter said. Its originator, Baptist pastor Rick Scarborough, has promised his fellow signers — some 50,000 people by the website’s count — will “resist all government efforts to require them to accept gay marriage, and they will accept any fine and jail time to protect their religious freedom and the freedom of others.”

Mike Huckabee
The former Arkansas governor also signed the DefendMarriage.Org civil disobedience pledge, and suggested that if elected president, he would ignore a Supreme Court ruling in favor of same-sex marriage.

“Presidents have understood that the Supreme Court cannot make a law, they cannot make it, the legislature has to make it, the executive branch has to sign it and enforce it,” Huckabee told Fox News’ Chris Wallace. “And the notion that the Supreme Court comes up with the ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government.”

Ted Cruz
In addition to proposing the more temperate course of a new constitutional amendment to limit marriage to straight couples, Cruz introduced a bill in the Senate that would bar federal courts from weighing in on marriage until that amendment was passed, Bloomberg reported in April.

“If the court tries to do this it will be rampant judicial activism. It will be lawlessness, it will be fundamentally illegitimate,” he said during an Iowa campaign stop earlier this spring.

Ben Carson
Ben Carson has expressed doubt that a Supreme Court decision favoring same-sex marriage would need to be enforced.

“First of all, we have to understand how the Constitution works. The president is required to carry out the laws of the land, the laws of the land come from the legislative branch,” Carson said in May. “So if the legislative branch creates a law or changes a law, the executive branch has a responsibly to carry it out. It doesn’t say they have the responsibility to carry out a judicial law. And that’s something we need to talk about.”

Steve King
Like Cruz, Rep. Steve King (R-IA) has also introduced legislation prohibiting courts — including the Supreme Court — from considering the question of same-sex marriage, by taking on Article III of the Constitution.

“We could pass this bill before the Supreme Court could even hear the oral arguments, let alone bring a decision down in June,” King said when introducing the bill in early April. “That would stop it right then, there would be no decision coming out of the Supreme Court. This is a brake, and whether we can get the brake on or not between now and June, that we don’t know.”

Tom DeLay
In addition to signing the civil disobedience pledge, the former GOP House majority leader has advocated for states to ignore a Supreme Court ruling in favor of same-sex marriage.

“A ruling by the Supreme Court is nothing but an opinion if the legislative branch and the executive branch do not enforce it,” DeLay said on Newsmax TV’s The Steve Malzberg Show. “Not only that, if the states would just invoke the 10th Amendment and assert their sovereignty, they can defy a ruling by the Supreme Court. It’s in the Constitution. We can tell the court what cases they can hear.”

Texas State Rep. Cecil Bell
Texas Democrats thwarted a bill sponsored by Republican state Rep. Cecil Bell that would have prohibited state and local governments from recognizing, granting or enforcing same-sex marriage licenses. Nevertheless, when the statehouse was considering the bill, Bell was skeptical that a Supreme Court ruling would bring same-sex marriage to the state.

“If the Supreme Court sets a precedent that says same-sex marriage is a legal precedent that states should adhere, that states will suddenly flock to that precedent and begin to conform…the reality is that when the Supreme Court sets precedents, states don’t always adhere to them,” he told TPM at the time. “I am not predicting what Texas will do — but to assume that Texas will suddenly change how it does business is presumptuous.”

Alabama State Supreme Court Chief Justice Roy Moore
Alabama’s top judge can boast of the coveted accomplishment of having already defied the Supreme Court when it allowed same-sex marriage to become legal in his state. Right before a federal ruling striking down the state’s marriage ban was to take effect, state Chief Justice Roy Moore issued an order barring local probate judges from issuing same-sex marriage licenses.

“When federal courts start changing our Constitution by defining words that are not even there, like marriage, they’re going to do the same thing with family in the future,” he later said, doubling down on his order. “When a word’s not in the Constitution, clearly the powers of the Supreme Court do not allow them to redefine words and seize power.”

Mexican Supreme Court Legalizes Same-Sex Marriage NY Times

With Little Fanfare, Mexican Supreme Court Legalizes Same-Sex Marriage

Hiram Gonzalez, center, married Severiano Chavez in the Mexican state of Chihuahua, where gay marriage is technically illegal. Credit Cheros A.C.

MEXICO CITY — His church turned him away, his family discouraged him from a public fight and the government of the state where he lives vowed it would never happen.

But it did. Hiram Gonzalez married his boyfriend, Severiano Chavez, last year in the northern state of Chihuahua, which, like most Mexican states, technically allows marriage only between a man and a woman.

Mr. Gonzalez and dozens of other gay couples in recent months have, however, found a powerful ally: Mexico’s Supreme Court.

In ruling after ruling, the court has said that state laws restricting marriage to heterosexuals are discriminatory. Though the decisions have been made to little public fanfare, they have had the effect of legalizing gay marriage in Mexico without enshrining it in law.

“When I heard the judge pronounce us legally married, I burst into tears,” said Mr. Gonzalez, 41. Like nearly all same-sex couples marrying in Mexico, he and his partner needed a court order in order to exchange vows.

As the United States awaits a landmark decision on gay marriage by the Supreme Court, the Mexican court’s rulings have added the country to a slowly growing list of Latin American nations permitting same-sex unions.


Victor Manuel Aguirre, left, and Victor Fernando Urias, center, with the mayor of Mexicali, the town where the two men wed. Credit Alex Cossio/Associated Press
Argentina, Uruguay and Brazil already allow same-sex marriage. Chile plans to recognize same-sex civil unions this year; Ecuador approved civil unions in April; and Colombia grants same-sex couples many of the same rights extended to heterosexual married couples.

“It’s a huge change from where things were 10 years ago,” said Jason Pierceson, a professor at the University of Illinois at Springfield who studies gay marriage trends in Latin America.

The shift in Mexico, the second-largest country in Latin America after Brazil, is the product of a legal strategy that advocates used to bypass state legislatures, which have shown little inclination, and often hostility, to legalizing gay marriage.

In 2009, Mexico City, a federal district and large liberal island in this socially conservative country, legalized gay marriage — a first in Latin America. There have been 5,297 same-sex weddings here since then, some of them couples coming to the city from other states.

Of the nation’s 31 states, only one, Coahuila, near the Texas border, has legalized gay marriage. A second state, Quintana Roo, where Cancun is, has allowed gay unions since 2012, when advocates pointed out that its civil code on marriage did not stipulate that couples be one man and one woman.

In most of the rest of the country, marriage is legally defined as a union between a man and a woman — laws that may remain on the books despite the court’s decisions.

The Supreme Court upheld Mexico City’s law in 2010, adding that other states had to recognize marriages performed there.

Advocates of gay marriage saw that as an opportunity to use the court’s rulings to assert that marriage laws in other states were discriminatory.

The court — taking into account international decisions and anti-discrimination treaties that Mexico has signed — has steadily agreed, granting injunctions in individual cases permitting gay couples to marry in states where the laws forbid it.

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A major turning point occurred this month when the court expanded on its rulings to issue a decree that any state law restricting marriage to heterosexuals is discriminatory.

“As the purpose of matrimony is not procreation, there is no justified reason that the matrimonial union be heterosexual, nor that it be stated as between only a man and only a woman,” the ruling said. “Such a statement turns out to be discriminatory in its mere expression.”

The ruling does not automatically strike down the state marriage laws. But it allows gay couples who are denied marriage rights in their states to seek injunctions from district judges, who are now obligated to grant them.

“Without a doubt, gay marriage is legal everywhere,” said Estefanía Vela Barba, an associate law professor at CIDE, a university in Mexico City. “If a same-sex couple comes along and the code says marriage is between a man and a woman and for the purposes of reproduction, the court says, ‘Ignore it, marriage is for two people.’”

The Roman Catholic Church, often an influential force socially and politically in a country that is 83 percent Catholic, objected to the ruling, saying the court had flouted two millenniums of convention.

“We reiterate our conviction, based on scientific, anthropological, philosophical, social and religious reasons, that the family, cell of society, is founded on the marriage of a man and a woman,” Msgr. Eugenio Lira Rugarcía, secretary general of the Mexican bishops’ conference, said in an email on Sunday in response to the decision.

He added that the church’s position is “stated in the millennia of Western legal tradition, collected and deepened throughout our history by legislators and judges from very different schools of thought and ideologies.”

In Mr. Gonzalez’s case, the Supreme Court had already ruled that the law in Chihuahua State was unconstitutional, enabling the couple to get an injunction so that their marriage could go forward.

State officials in Chihuahua vowed to never legalize same-sex marriage, and Mr. Gonzalez said he was expelled from his local church for being gay.

He and his husband refused to go to Mexico City to get married because they believed they should have that right in the state where they pay taxes.

The principle, he said, was important.

“It is not just the legal battle, but what it involves, the emotional and physical strain of the process,” Mr. Gonzalez said. “At the end, it’s a fight for your dignity.”

Alex Ali Mendez, a lawyer and gay rights activist with Mexico Marriage Equality, took on a case involving three couples from Oaxaca State in 2012, using the Supreme Court’s arguments to challenge the law in that state.

The court ruled in the couples’ favor. It was the first such decision in a state case.

“We opened the door in Oaxaca, and we are now opening it in different states,” Mr. Mendez said.

Bureaucratic hurdles, and sometimes hostility, remain.

Civil registry authorities abiding by state laws can still block couples hoping to marry.

It is up to the couples to appeal to the courts, a process that can cost $1,000 or more and take months. Although gay rights advocates are spreading the word, many couples remain unaware that they have a strong legal case to get married.

José Luis Caballero, a constitutional scholar who directs the law school at the Iberoamerican University in Mexico City, said that even though judges must now rule in favor of gay couples, full equality has yet to be reached.

“What has to happen is that the state laws have to be reformed so that couples have the same rights and they don’t have to spend time and money,” he said. “A couple with resources can get married. A couple without resources can’t.”

Victor Manuel Aguirre, 43, and Victor Fernando Urias, 38, in January faced down protesters and bureaucratic roadblocks in Baja California before, with the power of a court injunction, they became the first gay couple to marry there.

At one point, they could not get into the civil registry building because of demonstrators.

“We were both dressed in white and went back home completely defeated and humiliated and just cried our eyes out,” Mr. Aguirre said.

After news media coverage of the fracas, the mayor of Mexicali called them and said that there had been a misunderstanding and that they could marry.

“With many setbacks, love triumphed after all,” Mr. Aguirre said.

Mr. Mendez, the lawyer pressing these cases, said the next step in the legal process was compiling enough injunctions in each state to reach a threshold under which the court could formally order state legislatures to rewrite their laws.

But experts said that Mexico had already reached a watershed. “It certainly looks like there will be more marriage equality in Mexico in the near future,” Professor Pierceson said. “We don’t know if there will be any backlash or counterprotest to stop it.”

Elisabeth Malkin contributed reporting.