How is marriage equality like being forced to own a giraffe?
Oddly enough, that’s what passes for legal analysis at the Mississippi Supreme Court, where two justices testily dissented from a routine order recognizing that the Supreme Court’s landmark gay rights decision in Obergefell v. Hodges does indeed apply in the state of Mississippi. In one dissenting opinion, Justice Josiah Coleman compared Obergefell to hypothetical court decisions giving each U.S. Supreme Court justice a 5 million salary or requiring all members of a minority group to be sent to work camps. He also likens the Court’s marriage equality decision to “a United States Supreme Court decision that held the Constitution of the United States required every household in America to own a giraffe.”
The gist of two dissenting opinions, one by Coleman and one by Presiding Justice Jess Dickinson, is that Obergefell may be a sufficiently bad decision that lower courts can simply ignore it. They quote conservative legal scholars, many of whom are at the fringes of the legal academy, who make claims like “the Supreme Court’s decision . . . redefining marriage to include couples of the same sex is wholly illegitimate and unlawful. A nullity. Worthy only to be disobeyed.” They also quote the four dissenting justices’ most impassioned lines of criticism against the majority in Obergefell. “When five members of the Court hand down an order that the other four members believe has ‘no basis in the Constitution,’ a substantial question is presented as to whether I have a duty to follow it,” Coleman writes, in a particularly novel interpretation of what happens when the Supreme Court hands down a 5–4 decision.
In what may be an unintentionally revealing citation, however, Coleman spends much of his opinion criticizing the Supreme Court’s unanimous decision in Cooper v. Aaron, which rested on the proposition that “if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”
According to Justices Coleman and Dickinson, this conclusion is “not necessarily true and should be subject to questioning.”
Cooper is an odd decision for a judge to criticize, given the circumstances that gave rise to the Court’s opinion. Prior to Cooper, Arkansas’s governor and state legislature declared that they were not bound by Brown v. Board of Education and pledged resistance to public school segregation. Eventually, this resistance climaxed in the famous standoff between Arkansas National Guard members and nine African American students at Little Rock’s Central High School.
That was what the Supreme Court rejected in Cooper v. Aaron. They held that states cannot engage in massive resistance to public school desegregation.
In any event, Coleman and Dickinson have a point when they argue that there may be some threshold that the Supreme Court could cross when the justices have behaved in such a lawless manner that we should rethink the role of the judiciary in our society. During the first third of the twentieth century, for example, the Court engaged in a ideological crusade against progressive labor legislation, frequently striking down laws based on interpretations of the Constitution that are now widely viewed as ridiculous. Eventually, President Franklin Roosevelt responded with a proposal to pack the Court with extra justices in order to neutralize it.
Make no mistake, however, Roosevelt’s proposal was a proposal to destroy the Supreme Court as an independent body. It was his judgment that the judiciary had become such a cancer upon our democracy that it was better to cut it out than to allow it to continue to poison our system of government. The same can be said about Justices Dickinson and Coleman’s suggestion that lower court judges can ignore Supreme Court decisions if they find them sufficiently unconvincing. The judiciary only functions because lower court judges respect their position in a hierarchy. If this hierarchy breaks down, higher court decision become unenforceable, and the judiciary as a whole ceases to function as a vehicle to enforce uniform principles of American law.
Dickinson and Coleman, in other words, are effectively arguing that affording basic human rights to same-sex couples is such an affront to the Constitution that it is better to rip out the foundations of the American judicial system then to simply allow people to marry the person that they love.