Thursday, February 05, 2004

Gays, Gnats, and Camels
I’m beginning to think that the Republicans’ approach to the “gay marriage” issue in Massachusetts is all wrong. Thus far the President and GOP leaders have focused on amending the U.S. Constitution to prohibit gay marriage. Otherwise, the argument goes, the Full Faith and Credit Clause of the Constitution would force all states to recognize a gay marriage that was ordained by Massachusetts.

That’s probably right, but it seems to me the Republicans are, to borrow a Biblical phrase, straining at a gnat and swallowing a camel. Rather than amend the Constitution (no small task), I wonder if the GOP could use what’s already in the Constitution, namely Article IV, Section 4, to deal with both gay marriage in Massachusetts (gnat, though admittedly I think it’s a pretty big gnat) and the judicial tyranny (camel) that begat it.

For those who don’t spend much time reading the actual text of the Constitution (that would include most constitutional law professors and most of the justices of the U.S. Supreme Court), Article IV, Section 4 reads as follows: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

What, you ask, does Article IV have to do with gay marriage? Stay with me for a minute. In Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003), the Massachusetts Supreme Judicial Court first received divine revelation that the state constitution guarantees homosexuals the right to marry (never mind that nobody had discovered that right during the 223 years since the state constitution had been written). But the court didn’t stop there: it ordered the legislature to change the state’s laws within 180 days. Then, in its Feb. 4, 2004 “Opinions of the Justices to the Senate”, the court detailed the parameters of the law that the legislature must pass.

Again, you ask, what does this have to do with Article IV? The issue is whether the separation of powers doctrine is so necessary to a “Republican Form of Government” at the state level that the federal government is obligated to protect it.

One might argue that judicial usurpation has been going on at the federal level since Earl Warren was chief justice (and one would be right), thus the federal government has no business intervening to prevent judicial usurpation at the state level. But there’s a big difference between a court that fabricates law (a la Roe v. Wade) and a court that orders an elected legislature to adopt laws to its liking. And the Massachusetts court is not alone in such tyranny. In Guinn v. Legislature of Nevada, 76 P.3d 22, the Nevada Supreme Court effectively ordered the legislature to ignore the state constitution and pass a tax increase to fund schools.

So what can be done about it? I once asked Professor William Cohen, my constitutional law professor at Stanford, if Article IV, Section 4 had ever been cited in a judicial opinion. He looked puzzled for a moment, then said he couldn’t recall that it ever had – nor was he sure how it was intended to be enforced.

I think I have at least some idea. If Castro invades Florida and takes over the state legislature, then Congress can declare war and throw him out. That much is obvious, as is the case of a home-grown despot taking over the legislature by force. The trickier question is whether Congress can legislatively declare that a state supreme court has so overstepped its bounds that it has compromised the state’s “Republican Form of Government.”

That opens its own can of worms. But perhaps Congress could, at the very least, declare that no state court shall have power to prescribe the acts of the state legislature. Maybe that’s a tautology but, to hear liberals describe it, so is the Tenth Amendment.

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