Segregation now, segregation forever

You may recall that the Southern States did not take kindly to the Supreme Court's civil rights decisions.  They barred the schoolhouse door to prevent integration.  They fervantly promised that segregation would live on.  They contested the supremacy of the Federal Constitution over their own laws.

And, here in 2015, they are doing the same thing.  The NY Times

Republican state legislators in Oklahoma, South Carolina and Texas have introduced bills this year that would prohibit state or local government employees from issuing marriage licenses to gay couples, despite federal court rulings declaring bans on same-sex marriage unconstitutional in those states and questions about the constitutionality of the proposed state laws. The bills would also strip the salaries of employees who issued the licenses.

Political figures including Mike Huckabee are actively calling for  states to refuse to recognize the Federal Courts' decisions.


But history tells us they haven't a leg to stand on. Back in 1958, Arkansas governor Orval E. Faubus claimed that he was not bound by Brown v. Board of Education. He sent the National Guard into Little Rock to block school integration.  From THe Atlantic:

The Little Rock dispute brought federal troops to Central High. It led to the landmark opinion in Cooper v. Aaron, the only one in history signed by all nine Justices, which proclaimed that “the federal judiciary is supreme in the exposition of the law of the Constitution,” and that Brown “is the supreme law of the land.” All state officials, the Court noted, take an oath to support the federal Constitution. “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”

So, in response to the efforts to nullify marriage equality,

The answer to this argument is the same today as it was in 1958....no sovereignty shucking or jurisdictional jiving will, in the long run, prevail. If the Supreme Court, as seems likely, finds that same-sex couples have an equal right to marry, those who stand in the courthouse doors will certainly lose, and possibly pay.

But regardless there is a cost:

Huckabee and Moore, like Faubus, will take their place as laughingstocks of history. But that is not to say that they can do no damage; many of history’s villains masked malign intent with a touch of the clown. Faubus’ intractability led to riots in the streets of Little Rock; to beatings of reporters by a mob; to threats and trauma that would remain vivid for the nine black students for the rest of their lives. And if the high court strikes down same-sex marriage bans, clerks or legislators who invoke pretended power to ignore that decision will spread lasting damage and pain far more widely than they know. Official discrimination and hatred scar their victims, however bravely they press on to eventual victory. 

The Court can minimize that cost, by speaking clearly about the rights and dignity of LGBT people.  

Justice Kennedy’s three gay-rights opinions have been ground-breaking, but also opaque. He has consistently refused even to discuss whether sexual-orientation is more like race or red hair. Instead, he has insisted that each challenged provision was invalid no matter what level of “scrutiny” applies. 

The rumblings from the South give the Court notice that equivocation may encourage resistance. Now might be the time, with four other Justices at his back, for Kennedy to say forthrightly that when any agents of the state—legislators, judges, clerks—discriminate on this basis, they violate both the Constitution and their oath. 

This time, we can but hope that the trumpet the Court sounds will not be uncertain.