On Saturday, homophobes across Utah gathered near Salt Lake City to declare support for an “uprising” against gay marriage. Specifically, attendees decided that Utah should nullify (or, legally invalidate) any federal ruling on its gay marriage laws, and until then, county sheriffs should “defend” clerks who refuse to provide marriage licenses to gay couples.
This is not just bigoted idiocy; it’s total, jaw-dropping lunacy. The question of nullification was settled with resounding finality 150 years ago, when the Confederacy lost the Civil War to the Union. Really, it was resolved long before that, when the Founding Fathers replaced the Articles of Confederation with the Constitution—and noted that all federal laws and rulings “shall be the supreme law of the land.” Perhaps former Sheriff Richard Mack forgot this bit when he gave a presentation on the U.S. Constitution on Saturday.
But the more alarming aspect of the Utah uprising movement is the notion that a state may disagree so thoroughly with a federal court ruling that it can use armed force to prevent its implementation. You may remember the most infamous incident of judicial retaliation, at Little Rock Central High School on Sept. 2, 1957. On that shameful day, Arkansas Gov. Orville Faubus—one of the more hideously bigoted figures in the whole of American politics—called on the state National Guard to prevent nine black students from entering the school. In order to break the blockade, an extremely reluctant President Dwight Eisenhower had to federalize the National Guard (yes, presidents can do that). Several years later, President John F. Kennedy had a similar face-off with racist Alabama Gov. George Wallace, who had gathered a troop of sheriffs to battle integration. All this occurred years after the U.S. Supreme Court ruled unanimously that school segregation is unconstitutional.
These are the wolves with whom Utah’s nullifiers have elected to run: vicious racists who would rather shame, shun, and humiliate black students than comply with a just and virtuous federal order. And just as the bigots of the ’50s and ’60s were trounced by the president, so, too, will Utah’s doltish homophobes surely be rebuffed by President Barack Obama if need be. Still, the Utah insurrection raises an uncomfortable point about the limits of judicial power in the United States. Our federal courts are given very few means to enforce their rulings. Judge Robert Shelby has no army and no police force to insist that Utah follow his order and defend against those who would sabotage it; he has only his own capital—and the executive.
Eventually, Judge Shelby’s ruling, or one like it, will make its way to the U.S. Supreme Court. At that point, the tea leaves suggest that the justices may well strike down all state-level marriage bans, legalizing gay marriage throughout the entire country. Such a ruling is sure to spark an outcry akin to the “massive resistance” that met Brown v. Board in some backward Southern states. When that time comes, only a strongly pro-gay executive is likely to take the constitutionally necessary but politically risky move of compelling noncompliant states to comport with the court’s ruling. Our current president has already shown himself willing to fight back against states that reject federal gay rights rulings. But what are the odds that a President Marco Rubio or Chris Christie will be willing to step in and defend a future court order against a vitriolic and well-armed pack of homophobes?
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