Nullification: a bad idea that refuses to die

Lots of very upset right-wingers are insisting that just because the Supreme Court says state governments have to treat gays like they were people or something, that doesn’t mean they really have to do it. Who made the Supreme Court the boss of everybody, anyway? Well, all I can say is: good luck with that, you pie-eyed, grossly bigoted optimists, you.

There are two times in American history that I can think of off the top of my head when states have tried nullifying federal law, and just to show how fair-minded I am I actually would have agreed with the would-be nullifiers on one of them. That would be the case of the Fugitive Slave Laws. In both Prigg v. Pennsylvania (1842) and Ableman v. Booth (1859), the Supreme Court held that Northern free states could not take actions to free runaway slaves that contradicted the federal Fugitive Slave Acts of 1793 and 1850 (which the free states in question had argued were unconstitutional). Hey, I would have totally been on the states’ side on this one, but history, including a five year long war and ~600,000 dead soldiers, tells us that the attempt to nullify the Fugitive Slave Acts didn’t work. It actually contributed to the start of that war, at least according to South Carolina’s secession decree, and while I would say the evils of that war were necessary to end the greater evil of slavery, it’s unlikely that Pennsylvania or Wisconsin tried to provide safe haven to runaway slaves because they were of a mind to help kick off a civil war. That war, incidentally, went a pretty long way toward settling the question of state versus federal authority.

The second nullification attempt that I was thinking about came after the Brown v. Board of Education decision in 1954. This one is particularly relevant to last week’s marriage equality movement in that it also involves a Supreme Court decision, and the folks who talked about nullification back then have a lot in common with the ones talking about nullification now. Southern states attempted to pass several anti-desegregation laws in the years following Brown, declaring that the Court’s decision was itself unconstitutional. In Cooper v. Aaron, the Court decided, unsurprisingly, that it did not think that its previous decision had been unconstitutional, but that it was pretty sure that it was unconstitutional for the state of Arkansas to judge the constitutionality of Brown, or any other Supreme Court ruling for that matter. In a decision that was signed by all nine justices, the Court flat-out said that nullification isn’t Actually A Thing, as though that whole Civil War business hadn’t already sorted that out for us.

You can’t get much more definitive than a unanimous Supreme Court decision that says in pretty plain language that you can’t do what you’re planning to do, but Ted Cruz, who allegedly has a law degree, says otherwise:

“Those who are not parties to the suit are not bound by it,” the Texas Republican told NPR News’ Steve Inskeep in an interview published on Monday. Since only suits against the states of Ohio, Tennessee, Michigan and Kentucky were specifically considered in the Supreme Court’s Obergefell v. Hodges decision, which was handed down last Friday, Cruz — a former Supreme Court clerk — believes that other states with gay marriage bans need not comply, absent a judicial order.

Yeah, states who aren’t parties to the suit, just ignore the damn thing! You’ll lose as soon as the inevitable lawsuit gets to a federal court, if not before, but whatever!

Texas Governor Greg Abbott, who is also allegedly a lawyer but now has the same job that George W. Bush and Rick Perry once had, so you do the math, is couching his nullification “thoughts” in language about “prioritizing” concerns about freedom of religion. Technically this may be “interposition” (the theory that the state can “interpose” itself between the federal government and the state’s citizens) rather than nullification, but the legal distinction between the two isn’t very clear, and anyway the Supreme Court has been pretty clear that neither one is Actually A Thing.

Crazy Old Roy Moore, who as Chief Justice of the Alabama Supreme Court must therefore know something about this whole “law” business, seems like he might be talking about nullification here, but it’s buried so deep in so much sheer batshit insanity that it’s hard to know for sure.

Crazy Old Mike Huckabee, meanwhile, actually cited Martin Luther King Jr. as an example for individual Christians who might want to engage in civil disobedience in order to assert their “rights” to continue to treat gay people like sub-human deviants. That’s not nullification, but it is pretty damn nuts.