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Executive Power and the Gay-Marriage Cases

The Supreme Court has now heard arguments in both of the same-sex marriages cases before it this season. As Ed Kilgore points out, the two cases actually cut across one another: United States v. Windsor would invalidate the Defense of Marriage Act on (probably) states’ rights grounds if the plaintiff prevails—forcing the U.S. federal government to recognize all marriage licenses granted by states to same-sex couples. (Right now it recognizes none.) Hollingsworth v. Perry reverses the roles, with the pro-SSM side seeking a precedent that would apply gay marriage nationwide—probably on 14th Amendment grounds—while a victory for states’ rights would be a victory for California’s ban on gay marriage.

Kilgore predicts the Court will punt on Hollingsworth by simply upholding the lower court that already invalidated Proposition 8, avoiding establishing a wider precedent. Jonathan Rauch describes this “off ramp”:

They would decide that the plaintiffs lack standing to bring the case, because California had chosen not to appeal a district court’s decision overturning Proposition 8. The effect would be to knock down California’s gay-marriage ban on a technicality, without affecting the rest of the country.

Politically the off-ramp presents problems of its own. As several justices pointed out, it implies that if state officials don’t like the result of a voter initiative, they could subvert it by defending it badly, baiting a court to overturn it, and then choosing not to appeal.

California’s Democratic attorneys general (first Jerry Brown, before he returned to the governor’s mansion, and now Kamala Harris) have simply refused to defend the voter-enacted proposition. Brown has called it unconstitutional. In the DOMA case, the Obama administration has said the president believes the law to be unconstitutional but is enforcing it anyway, which prompted Chief Justice John Roberts to remark:

If he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions, and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.

So: the Chief Justice wants the president to choose which parts of a piece of legislation he’ll enforce and how, rather than let the Court decide what’s constitutional. The president doesn’t want to defend DOMA, but he won’t go as far as Jerry Brown went in refusing to argue for a duly enacted law that he thinks is unconstitutional. Consider this Jerry Brown’s own variation on nullification.

This seems like a lot of leeway for the executive branch, state or federal, doesn’t it? On the one hand, presidents, governors, and attorneys general are more accountable to the public than judges are: if voters are unhappy with how laws are being executed, or not executed, they can do something about it pretty quickly. But it’s notable—quite apart from the substance of the cases in question—what’s revealed here about attitudes within government toward the separation of powers: Courts are willing to defer to executives, and voters seem disinclined to punish those same executives for failing to advocate effectively for duly enacted laws. Legislative actions and referenda seem to be treated as rooted in very transitory passions, in contrast to the weight accorded to executives’ constitutional opinions. Brown, Obama, and Roberts, to different degrees, all appear to partake of this mindset.

What one would like to see, from a rule-of-law perspective, is a public that either punishes defiant executives or else compels the law to be changed through the legislature or referendum. What we actually see, I’m afraid, is a public that simply takes executive power far more seriously than legislation. Courts defer to executives, and the public values executives more than it values defense of the law.

about the author

Daniel McCarthy is editor at large of The American Conservative. His writing has appeared in the New York Times, USA Today, The Spectator, The National Interest, Reason, Modern Age, and many other publications. Outside of journalism he has worked as internet communications coordinator for the Ron Paul 2008 presidential campaign and as senior editor of ISI Books. He is a graduate of Washington University in St. Louis, where he studied classics. Follow him on Twitter.

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