Last Wednesday, Alabama Chief Justice Roy Moore ordered his state’s probate judges not to issue marriage licenses to same-sex couples. It should come as no surprise that the religious right essentially gave Moore a standing ovation. But none have gone as far as American Family Radio afternoon host Bryan Fischer. He thinks Moore was right to issue this order because a Supreme Court decision does not have the force of federal law.
Moore argued that Obergefell v. Hodges only struck down same-sex marriage bans in Kentucky, Ohio, and Tennessee. He wrote that until he and his colleagues on the Alabama Supreme Court can decide how that ruling affects an order he issued in March to stop the issuing of licenses to same-sex couples, the state’s probate judges have “a ministerial duty” not to issue them. The absurdity in this ruling would be obvious to anyone with a fifth-grade education. Article Six of the federal Constitution clearly states that the federal Constitution is “the supreme law of the land.” The Supreme Court’s power of judicial review derives from this article.
However, in a post on the American Family Association’s official blog, Fischer takes a position that makes Moore’s argument sound like a model of sanity. He argues that Obergefell only applies to James Obergefell, his partner, John Arthur, and the other 14 plaintiffs in the case. Citing Moore’s argument that a federal court has no power to “bind anyone but a party,” Fischer claims that while the original plaintiffs are now entitled to marriage licenses, “no one else” in this country can get one.
Fischer goes further off the deep end by saying that the Supreme Court can’t make law on any subject at all, but can merely express its opinion. His argument has to be reproduced in full to be believed.
“Let’s not forget that the Supreme Court issues ‘opinions’ not ‘rulings.’ And since we live in America, they are certainly entitled to their own opinions. But it is the Supreme Court, not the Supreme Branch. A Supreme Court ruling cannot possibly be ‘the law of the land,’ as the Human Rights Campaign pretends. This is because Article I, Section 1 says quite explicitly that ‘All legislative powers herein granted shall be vested in a Congress of the United States.’ ‘All’ means ‘all,’ as in every last little bit.
How much ‘legislative power’ does the Supreme Court have? Zero. None. Nada. Zilch. It is constitutionally impossible for the Supreme Court to make law. Thus not a single one of its rulings can possibly be ‘the law of the land.’ It doesn’t have that kind of authority.”
This is a new twist on an old right-wing shibboleth–that courts have no power to make law. However, Fischer sees it differently. He believes that every high court in the 31 states where same-sex marriage was still banned prior to this summer should follow Moore’s example and “reclaim the right of the people of their state to govern themselves” without having to worry about “the self-anointed elites on the other side of the country” butting in.
To put it mildly, Fischer and Moore are treading on extremely dangerous ground. By their “logic,” most states can ban people who don’t believe in God from holding public office because Torcaso v. Watkins only applied to Maryland–and possibly only to Torcaso. Interracial marriages are still illegal in most of this country because Loving v. Virginia only applies in Virginia–and possibly only to the Lovings. Kids can still be forced to pray in school because Engel v. Vitale only applies in New York, and Abington School District v. Schempp and Murray v. Curlett only apply in Pennsylvania and Maryland–and possibly, only to the plaintiffs in those cases. And theoretically, schools are still free to segregate because Brown v. Board of Education only applied in Kansas. Et cetera, et cetera, ad nauseum.
Here’s why this should really unnerve you. This claptrap is being taught to kids in Christian schools and fundamentalist-influenced homeschooling curricula across the country–which means a significant segment of this country is being taught that the Supreme Court has no power to enforce the Constitution. Fischer is right–you’re entitled to your own opinion. But you’re not entitled to your own facts. Wwith apologies to Politifact, your suggestion that courts can’t make law is Pants on Fire wrong.
