Shortly after repealing the controversial House Bill 2, the transgender bathroom bill, North Carolina lawmakers have introduced legislation to nullify same-sex marriages in the Tar Heel State.
“The General Assembly of the State of North Carolina declares that the Obergefell v. Hodges decision of the United States Supreme Court of 2015 is null and void in the State of North Carolina, and that the State of North Carolina shall henceforth uphold and enforce Section 6 of Article XIV of the North Carolina Constitution, the opinion and objection of the United States Supreme Court notwithstanding,” reads House Bill 780, also called the Uphold Historical Marriage Act.
“Marriages, whether created by common law, contracted or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina,” the measure declares.
The Republican bill asserts that the U.S. Supreme Court “overstepped its constitutional bounds” when it legalized same-sex marriage in the 2015 decision.
Representative Deb Butler, an openly lesbian lawmaker in the North Carolina General Assembly, called the legislation “despicable.”
“As if we haven’t already been in the national spotlight for all the wrong reasons this year with HB2, we’re now going to prove just how draconian and ridiculous we are,” Butler told NBC Out. “It seems that these alt-right legislators don’t learn from mistakes made, and they feel this sort of damaging and disruptive behavior is somehow going to get them reelected, and I think the contrary will prove true.”
But NBC Out described HB2 as “expensive,” likely referencing the loud boycotts from many companies and the public denunciations of sports associations like the ACC and NCAA, which pulled championships from the state in protest. This description gives the boycott effort far too much credit, however. After passing HB2, the state’s economy boomed, and even the Associated Press’s much-touted study giving the bill a $3.76 billion price tag means HB2 would only cost the state’s economy 0.058 percent GDP growth — over the next twelve years.
Perhaps this is the real reason North Carolina Republicans would hazard a legislative repeal of Obergefell — HB2 did not really cost North Carolina much of anything, especially compared to Target’s pro-transgender decision.
But is it constitutional?
“States can’t nullify a decision of a federal court, meaning to make it void and of no legal force, except through participating in the Amendment process,” Adam Carrington, a professor of politics at Hillsdale College, told PJ Media. “Especially regarding the fate of the litigants involved in a particular case, the decision is binding.”
Nevertheless, Carrington insisted that there can be legitimate debate about whether or not a decision should count as precedent. But such a debate relies on rejecting a common view of judicial supremacy.
Many scholars and citizens accept the view that the judicial branch — and especially the Supreme Court — alone declares the Constitution’s meaning. “This argument says that courts declare what the law means as part of their job and thus all other entities — state or national — must work within their framework,” the professor explained. “Otherwise, this argument goes, there wouldn’t be a uniform view of the Constitution to follow.”
But this is not the only way to understand the Constitution. Carrington referred to “an historical and textual argument for denying to the national courts the sole power to define what the Constitution means.” Two presidents — Andrew Jackson and Abraham Lincoln — struck down Supreme Court decisions, on the national bank and the infamous Dred Scott v. Sandford case.
In both these cases, the president argued that “other branches of the national government or the states could refuse to abide by Court precedents because the Supreme Court was not the only body tasked with interpreting the Constitution.”
Article VI of the Constitution declares that “the members of the several state legislatures, and all executive and judicial officers … of the several states, shall be bound by oath or affirmation, to support this Constitution.” Carrington explained that “to support the Constitution involves an act of interpretation in how to do so.”
“Thus, while the Court, due to the nature of judicial power, has a privileged place in the interpretation of the Constitution, state officers must interpret it as best they can, too,” the professor explained. This allows for debate about different interpretations of the Constitution. While such debate “could be messy at times,” Carrington argued that it “would ultimately be resolved in how the people reacted to the debate in future elections.”
While it could be argued that North Carolina’s repeal of the Obergefell decision falls under the purview of state legislators interpreting the Constitution differently than the Supreme Court, most Americans do not think in those terms. Furthermore, even if Americans grant some interpretive power rests outside of the Supreme Court, they would likely still trace it to national branches of government — Congress or the president. After all, both Lincoln and Jackson made the argument as presidents.
Carrington agreed with the lesbian representative, Deb Butler, that the North Carolina bill will likely fail. “The position I just articulated is by no means the majority one among politicians, political scientists, or the people at the present time,” the professor admitted. “Thus, even if the bill does pass, it will be struck down by the courts on the basis of the Obergefell precedent.”
Measures like the North Carolina bill could succeed, however, if the states or Congress were to pass a constitutional amendment allowing states to define marriage as they prefer, and the issue would have to be revisited if a law to that effect passed Congress and was signed by President Trump.
The best solution yet for the marriage struggle arguably comes from Alabama, however, which might pass a bill outlawing marriage licenses. The idea is that the state should not decide what is and is not a marriage, so rather than providing a license which effectively legitimizes a marriage, the government should merely record a marriage for legal purposes.
Such a bill would draw a clear distinction between state records and the religious solemnization of a marriage — theoretically allowing even conscientious objectors like Kim Davis to record a marriage without having to condone it.
Navigating the law can be difficult for conservatives in the post-Obergefell era. But a straight repeal like North Carolina is attempting seems doomed to failure without a national push to legitimize it. Alabama’s law presents a more cunning alternative that should satisfy both parties involved.