opinion

Marriage defense backers mirror segregation defenders

In Obergefell v. Hodges last spring, the United States Supreme Court held that the 14th Amendment to the Constitution prohibits states from banning same-sex marriage.

Now the “Tennessee Natural Marriage Defense Act” — just introduced in the Tennessee House — purports to nullify Obergefell.

This bill calls the Obergefell decision “lawless” and “an act of will, not a legal judgment.”

It declares the decision “unauthoritative, void, and of no effect,” and prohibits state or local officials from giving it force or effect.

The bill justifies ignoring a ruling from the highest court in the land by pointing to historical evidence: Jefferson and Madison authored the Virginia and Kentucky resolutions rejecting the federal Alien and Sedition Acts, and Wisconsin and other Northern states enacted laws nullifying the federal Fugitive Slave Act.

But the bill leaves out much closer historical parallels. The bill’s condemnation of the Supreme Court’s “lawlessness” echoes the 1956 Southern Manifesto, which declared Brown v. Board of Education “unwarranted” and a “clear abuse of judicial power.” (To Tennessee’s credit, its two senators — Estes Kefauver and Al Gore Sr. — were two of the three Southern senators who did not sign the manifesto.)

Similarly, Georgia Gov. Herman Talmadge asserted that in Brown the court had “blatantly ignored all law and precedent” and “usurped” the rights of Congress and the states.

For the Tennessee legislature to declare that it will not obey a Supreme Court decision calls to mind Mississippi Sen. James Eastland, who in the wake of Brown declared that the South “will not abide by or obey this legislative decision by a political court.”

It evokes George Wallace’s refusal to allow James Meredith to enter the University of Alabama despite a Supreme Court decision ordering Meredith’s admission.

There is an important difference between, on the one hand, Jefferson, Madison and Northern foes of the Fugitive Slave Act, and, on the other, the Southern opponents of Brown.

The Alien and Sedition Acts censored political speech.

The Fugitive Slave Act enforced the enslavement of a whole race.

Those who opposed these federal actions did so in the name of protecting individual rights.

But the Court’s Brown decision upheld individual rights: a right to equal treatment and a right to an equal education. Those who opposed the decision instead defended the right of a state to deny equal treatment, to discriminate against individuals.

Obergefell is more like Brown than it is like the Alien and Sedition Acts or the Fugitive Slave Act: It protects individual rights and demands that gay and straight couples be treated the same. The models for this Tennessee bill are not Jefferson and Madison, but Wallace and the Southern Manifesto.

Calling out for justice on behalf of individual rights and equal treatment is laudable. Doing so in order to allow unequal treatment and discrimination is shameful.

Suzanna Sherry is the Herman O. Loewenstein Professor of Law.