Arguing for same-sex divorce before Mississippi’s Supreme Court     

Not all American states have placidly accepted the Supreme Court’s decision in Obergefell v Hodges to declare same-sex marriage constitutional. Some are listening to advice from legal scholars that “state officeholders” should “refuse to accept Obergefell as binding precedent”.

If this gathers momentum, there could eventually be some scope for state governors to ignore Obergefell as a precedent. Instead, they could argue that the Court had spoken authoritatively only for the parties involved in that case alone. It’s not likely, but a crack may be opening.

Here is what happened in Mississippi.

Lauren Beth Czekala-Chatham, a 52-year-old credit analyst, who already had two children from a failed heterosexual marriage, moved to California in 2008 so that she could marry Dana Ann Melancon. But the relationship soured and they separated in 2010. When Ms Czekala-Chatham applied for a divorce, citing adultery and habitual cruel and inhuman treatment,  she failed. The state predictably argued that Mississippi could not grant a divorce for a marriage which it did not recognise.

Her petition for a same-sex divorce was renewed soon after Obergefell decision was handed down on June 26. On November 5 the State Supreme Court declared that “We find that no contested issues remain for resolution and that the motion should be granted.” (link to PDF). In other words, since it was an open and shut case, there was nothing to discuss.

But, surprisingly, this conclusion was reached only by the narrowest of margins, 5 to 4. It was a bitter clash of views with the judges exchanging some remarkably ill-tempered remarks about loyalty to their oath of office.

How the four dissenters justified their opinions is extremely interesting – although it has been completely ignored by the media.

There were two schools of thought.

One was basically technical. Justice King and Justice Kitchens agreed that the US Supreme Court’s ruling must be obeyed. But they declared that “this Court does a great disservice to the jurisprudence of this State by reaching such result in an order, rather than issuing a precedential opinion”. Obergefell had not solved all issues relating to same-sex marriage – such as same-sex divorce, which was the case before the court – and a considered opinion would be valuable. It would also be a hat-tip of respect to voters, who had passed an amendment to the state constitution banning same-sex marriage in 2004. 

The second, astonishingly, breathed defiance. It relied heavily upon the arguments put forward by Professor Robert P. George and a number of scholars in support of “constitutional resistance”. As a layman, I had found George’s arguments perplexing. The dissents of the Mississippi judges made them far more plausible.

Justice Coleman wrote boldly that there is a “possibility that the United States Supreme Court has acted unconstitutionally”. This does not arise from prejudice against same-sex marriage, he claimed. “I would be writing the same statement and expressing the same concerns if faced with a United States Supreme Court decision that held the Constitution of the United States required every household in America to own a giraffe.”

In this, he was strongly influenced by the dissenting opinion of Chief Justice Roberts, who had written: “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.” And Justice Scalia was even more withering in his comment: “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.”

Most Americans accept the notion of judicial supremacy, ie, that the Supreme Court is supreme in interpreting the supreme law of the land. But Justice Coleman points out that there has to be some limit to its powers. “It is absurd to think that the President of the United States, the Congress of the United States, the various federal agencies, the governors of the fifty states, the legislatures of the fifty states, the courts of the fifty states, and the innumerable agencies of the fifty states all can act in ways contrary to the Constitution, but that five or more justices of the Supreme Court, acting together, never can.”

The objection hinges on the whether the decision was “an act of will” or a carefully studied “legal judgement”. Justice Coleman employs a reductio ad absurdum to make his point:

For example, what should we do if the Supreme Court of the United States held … that the Constitution requires the Congress to declare war on countries that do not provide an accused the right to a jury trial? What if five justices on the United States Supreme Court serve upon Congress and the President an opinion and mandate that hold the Constitution requires all members of fill-in-the-blank ethnic group to be removed to work camps? If the Constitution truly means what five Supreme Court justices say it means, and no other soul in the country has a right to dispute them, what is the limit on its power?

The above examples are absurd, but the absurdity shows that the conclusion – that the Constitution means whatever a majority of the Supreme Court says it means – cannot always be true. The question for us then becomes, at what point does it become untrue?

This could create a problem of conscience for judges like Mississippi’s Justice Coleman:

If the four dissenters are correct, then the United States Supreme Court in Obergefell arguably has done something it has no power under the Constitution of the United States to do. … If such is the case, there may be lower-court judges who cannot both (a) follow Obergefell and (b) “faithfully and impartially discharge and perform all the duties incumbent upon [them] . . . agreeably to the Constitution of the United States. . . .” [as the Mississippi Constitution says]. The two would be mutually exclusive.

In another dissent, Presiding Judge Dickinson queried the logic of regarding all Supreme Court decisions as binding. “If justices who do not follow Supreme Court precedent are in violation of the judicial oath—then every United States Supreme Court justice violates his or her oath of office every time he or she dissents to binding precedent.”

The powerful dissenting opinions of Chief Justice Roberts and Justices Scalia, Thomas and Alito in Obergefell have obviously had a strong impact upon lower court judges who are sceptical of an implied right to same-sex marriage in the American Constitution. Judge Dickinson writes:

I swore no oath to follow decisions that have “no basis in the Constitution.” And so long as the Supreme Court interprets the Constitution, I will recognize its interpretations as the supreme law of the land, and I will follow them, even where I disagree with them.  But 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.

Supporters of same-sex marriage will no doubt taunt the Mississippi dissenters as “losers” and tell them to shut up: there is no appeal against a decision of SCOTUS. The best that the defeated side can do is reopen the issue when the composition of the court changes. This treats the Court as a divine oracle and scepticism as tantamount to blasphemy. As Catholic theologians used to say: Roma locuta; causa finita, Rome has spoken; the case is closed.

But constitutional law is not theology, whose building blocks are articles of faith. It is reasoned discourse based on a foundational document. The dissenting judges in Mississippi have raised a vital question about judicial activism: how should the legislative and executive branches respond if the Supreme Court ever oversteps its authority?

We know how America’s greatest president responded: Abraham Lincoln ignored the Court’s 1857 decision in Dred Scott v. Sandford, which declared that blacks could not be citizens and Congress could not ban slavery in federal territories. Instead he issued the Emancipation Proclamation and freed American slaves. He explained his sceptical view of judicial supremacy in his First Inaugural Address:

if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

There will be no civil war over same-sex marriage. But there could be a change of hearts on judicial supremacy. After all, democracy is dearer to the hearts of Americans than their confidence in the wisdom of nine black-robed lawyers.

Michael Cook is editor of MercatorNet.

Michael Cook

Michael Cook is the editor of MercatorNet. He lives in Sydney, Australia.