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Supremacy, the Supremes, and Marriage Equality

Two folks asked questions relating to the piece on the Arkansas Marriage Equality cases being argued on the same day in federal and state courts.

One person asked “Why do states even vote on gay marriage if ultimately the courts are going to decide? Personally I am against it, though not a big issue for me, but shouldn’t people in a state be allowed to decide that? If not, then let’s just take it off the ballot moving forward and let judges decide.”

Voting is only material to the state Constitution and not the federal. In my opinion, state voters can amend their constitution without violating their own constitution. The new amendment trumps anything stated earlier in the document. But state voters cannot approve something that violates the US constitution. The Supremacy Clause is the final answer here. Thus, whether or not 70% of the voters approved the Defense of Marriage Amendment has no relevance to the question whether or not the DOMA violates the US Constitution. If it mattered, then states could, as Jack Wagoner said during oral argument, amend their constitutions to require everyone to be Baptists.

Arkansas tried something like this in response to Brown v Board. In 1956, voters passed Amendment 44 to the state constitution which declared the state’s opposition to the Brown decision and ordered state legislators to pass laws to obstruct the implementation of Brown officials and to “remain steadfast” in their opposition to desegregation. Later, everyone agreed that the amendment violated the US constitution and, therefore was null and void no matter how many people voted for it. See Dietz v Arkansas, 709 F. Supp 902 (E.D. Ark 1989) holding that Amendment 44 violated the Supremacy Clause. Voters repealed it the next year by a 51%-49% vote.

Bottom line: the US Constitution is the supreme law of the land and state voters cannot vote its provisions out of existence.

Someone else questioned my suggestion that the state judgment would probably control if the federal court ruled against the DOMA while the state supreme court upheld it. Here is my argument in brief. States are bound to follow the US Constitution (Supremacy Clause) but they are not bound to follow any intermediate interpretation until the US Supreme Court has the final say (see Cooper v. Aaron). Cooper says that the SCOTUS interpretation of the constitution is supreme but does not suggest that every lower court ruling is similarly supreme. The constitution does not require Congress to create lower federal courts. Thus, the framers anticipated that state courts would hear constitutional cases. State supreme courts are not subordinate to the lower federal courts. One does not appeal from a state supreme court to a federal district court, for example. The appeal on federal questions goes to the SCOTUS in the same way that appeals from Federal Courts of Appeals do.

Bottom line: state supreme courts share the individual state’s sovereignty. Their decisions on federal constitutional matters deserve respect until they are reversed by the US Supreme court.

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November 24, 2014   No Comments