Same-Sex Marriage and the Rule of Law

July 27th, 2013

Let me preface this post by stressing that I support marriage equality, and agree with the outcomes in both Windsor and Perry. This post has nothing to do with equal protection or due process. Rather, this post focuses on the rule of law.

One of the more unfortunate byproducts of recent cases concerning gay rights has been a drastic departure from the longstanding practice of the government to defend laws until a court tells them not to.

Five years ago, Prop 8 was passed by a majority of Californians (a referendum that I would not have voted for). The Governors of California, first Schwarzenegger and later Brown, made the decision not to defend a law that was passed pursuant to their own state Constitution. The decision to withdraw from the case ultimately led to the Supreme Court dismissing the appeal, because no party had standing. Abdicating the government’s obligation to defend the law deprived millions of Californians of their vote (even though today the measure would almost certainly not pass).

On remand, even though the general practice of the Supreme Court is to wait 30 days for a remand, the 9th Circuit took it upon itself to vacate the stay. (Do you remember when 20 judges on the Central District of California Bankruptcy Court found DOMA unconstitutional? In a totally bizarre and unprecedented opinion? DOJ appealed). Within hours of the 9th Circuit’s order, the California Attorney General officiated at the first marriage with the eponymous plaintiffs from Perry (I watched the beautiful ceremony). The losing party in Perry, which had every right under the law to petition for a rehearing in the due course, was forced to file an emergency appeal, asking Justice Kennedy to stop ongoing ceremonies. The Supreme Court denied it. Again, the 9th Circuit and the California Attorney General, in their haste to get the marriages started, departed from the rules.

Let’s turn to the federal government. As pointed out during oral argument, the President has long defended and enforced federal laws, unless he deemed them to be unconstitutional, or infringed on his own executive power (an OLC opinion to that effect has been on the books fore a long time). The President made the odd decision to stop defending the law, but still enforced DOMA. I guess this is like “taking care, with discretion, that the laws are faithfully executed.” By withdrawing from the appeal, similar to the case in California, the federal government potentially deprived standing to anyone challenging the law (ultimately the Court founding standing for the BLAG, but this was not a given). But even worse, the Administration was so intent on this case going to the Supreme Court–even if the lower court ruled in their favor, that the SG filed a petition for certiorari before judgment in the Second Circuit. It is such an odd procedural wrangling, with the sole purpose of ensuring that *someone* could appeal on behalf of the government, even if it was the BLAG. At every state, the handling of this case departed from the normal rules of the Executive Branch.

Fast-forward to after Perry was decided. The Pennsylvania Attorney General has made the decision not to defend the state’s ban on same-sex marriage–even though the state laws (as I understand them) mandates that she defend all laws unless she independently determines it is unconstitutional. Nah, she said. She thinks the ban is unconstitutional, even though this conclusion does not necessarily follow from Windsor (unless you follow Justice Scalia’s dissent). No matter. Unlike California,where both the Governor and AG decided not to support the Prop  8 defense, Pennsylvania has a Republican Governor, Tom Corbett,who will defend the law.

More news from the Commonwealth. A county official, the “Register of Wills,” has personally decided that the state’s ban on SSM violates the Constitution. So what did he decide?  He’ll hand out marriage licenses to same-sex couples.

“I am going by my lights here. I am going by what I think is right,” stated Montgomery County’s Register of Wills, D. Bruce Hanes. He began issuing the licenses Wednesday morning, a day after signaling his willingness to do so.

Hanes said he doesn’t believe the state statute limiting marriage licenses to heterosexual couples complies with the Pennsylvania Constitution.

I do not know anything about the role of the Register of Wills. Though, I’m fairly certain that such a determination lies with a commonwealth court. I agree that members of the executive branch, and the legislative branch, should adhere to their oaths, and not do something unconstitutional. But this is a stretch of our separation of powers for officials to unilaterally make this decision.

All of these vignettes should trouble us–as soon as we peel back the fact that we may like the outcome. It’s not hard to fashion scenarios where a different executive branch official unilaterally makes decisions that can frustrate goals you may like. The failure to defend laws may totally insulate them from judicial review. Only *after* Perry was decided, did Erwin Chemerinsky come around and say, hey, we should worry about government’s not defending certain laws. Convenient.

The social movement behind the pursuit of marriage equality in this country, in all branches of government at the state and local level, has been remarkable. But I fear that we have made many exceptions to the rule of law that are unfortunate, and largely ignored the last few years.

Let’s not be so cheerful when authorities flagrantly ignore the law, based on a speculation of what courts will do. Sue the bastards. And let the courts make this decision.