Ever since the Supreme Court ordered the federal government to recognize same-sex marriages, red state legislators have struggled to come up with creative new ways to legally demean gay people. This year, Texas and South Carolina appear poised to up the ante: Rather than pass state laws stripping gay people of their rights, legislators in both states will consider barring state judges from ruling in favor of gay marriage. Any judge who violates the law by siding with gay plaintiffs would lose her salary, her pension, and her benefits—including health insurance.
There is, however, a slight problem with these laws: They are wildly, blatantly, uncontestably unconstitutional. A federal judge has already declared Texas’ gay marriage ban to be unconstitutional, and the 4th Circuit (which covers South Carolina) ruled in favor of a constitutional right to marriage equality last summer. Further, an overwhelming number of federal courts have interpreted the Supreme Court’s ruling in United States v. Windsor to mandate the invalidation of every gay marriage ban.
Any state judge in Texas or South Carolina who rules in favor of gay marriage, then, will simply be following federal law. And thanks to the Constitution’s supremacy clause, federal law is “the supreme law of the land,” superseding “anything in the Constitution or laws of any State to the contrary.” By threatening to lay off any state judge who dares use federal law to strike down anti-gay state statutes, Texas and South Carolina would be in clear violation of the supremacy clause.
Irresponsible chatter about firing or impeaching pro-gay judges is, of course, nothing new—and the odious strategy of threatening progressive judges stretches back to the days of “massive resistance” during the Civil Rights Era. The framers of the Constitution clearly anticipated this kind of delinquency among state legislators, which is part of why they wrote the supremacy clause in the first place. But I doubt the men who created our system of federalism could have anticipated just how cockily some states would flout the clear command of federal law. Perhaps Texas and South Carolina will come to their senses and reject these absurdly broad bills, which would seem to forbid all state officials—including clerks and social workers—from recognizing same-sex marriages. But if the states’ track records are any indication, Texas and South Carolina will go as far as they can to debase and degrade the gay Americans living within their borders.