Impeach! Punish! Defy! New Wave of Anti-Court Legislation Would Punish Courts for Marriage Rulings

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April 10, 2015

“Impeach! Punish! Defy!” -- This is the new rallying cry of politicians who will stop at nothing in their effort to thwart court rulings upholding equality and dignity for LGBT people and their families.

Since United States v. Windsor, the tsunami of court decisions in favor of the freedom to marry has been followed by an undercurrent of anti-court legislation. From impeachment to salary-cutting and jurisdiction-stripping, these bills don’t suffer from a shortage of tactics; they borrow from a stale playbook, which we can call “Lose the Ruling, Attack the Court.”

Here is a look at the list of plays:

Impeach: A few weeks ago, the Idaho House passed a nonbinding memorial urging Congress to impeach any federal judge that ruled in favor of the freedom to marry.

Punish:  “Punish the judges” bills in South Carolina and Texas would punish any state judge recognizing, granting or enforcing marriage licenses of same-sex couples by automatically removing the judge from the case and denying salary, pension and other benefits. The bills also purport to make the laws themselves immune from a constitutional challenge by forbidding judicial review.  A similar bill in Oklahoma, which recently cleared the Oklahoma Judiciary Committee, would go even farther by simply removing the judge from office.  In February, a Texas lawmaker filed a complaint against the county probate judge who ruled that the state marriage ban was unconstitutional.

Defy: A bill in Texas directs state judges to continue enforcing the state’s discriminatory marriage ban, regardless of any federal court ruling to the contrary. In a recent speech, Senator Ted Cruz floated a court-stripping proposal to prevent all federal courts from hearing marriage equality cases. Then of course, there is Alabama, where the state’s Supreme Court rushed out a decision last month ordering probate judges not to marry same-sex couples. This order was in direct conflict with a federal court ruling which struck down the Alabama marriage ban as unconstitutional.

If you are thinking these bills are extreme and unconstitutional, you are right!

The U.S. Court of Appeals for the 4th Circuit, which covers South Carolina, and the 10th Circuit, which covers Oklahoma, have already ruled that discriminatory state marriage bans violate the U.S. Constitution. Likewise, a federal court in Texas also struck down the state’s ban, and the 5th Circuit (covering Texas) may issue a similar decision any day now. Of course, this month the Supreme Court will hear argument in the cases out of the 6th Circuit, with a ruling expected in June. All of these decisions rely on the U.S. Constitution, and as we all learned in grade school, the federal Constitution trumps the constitutions and laws of the states. Incidentally, only one federal judge has ever been impeached for an individual ruling, but the Senate refused to convict him -- and that was in the early 1800s. 

However unconstitutional these bills may be, they are not harmless!

When politicians attack judges based on their rulings in specific cases, it can have a chilling effect on the courts, potentially influencing future decisions. This undermines judicial independence and thus jeopardizes our constitutional system.  These toxic threats warp public perception of the role of the courts and serve to legitimize rogue actions of some judges who already harbor anti-LGBT bias—Alabama Chief Justice Roy Moore comes to mind.

It’s up to us—all of us—to defend judicial independence. Find out how you can join Lambda Legal’s fight for fair and impartial state courts.