Pass Good Laws, Repeal Bad Ones

If the repeal of DOMA is a waste of time, I hope we waste a bunch more of it

In the wake of the Dobbs v. Jackson Women’s Health decision overturning Roe v. Wade, Democratic-controlled legislatures in various states as well as the current Democratic Congress have started passing bills protecting various rights that were secured by Supreme Court decisions but that now look like they might be under threat. California, for example, is putting a referendum before the voters to enshrine the right to abortion and contraception into the state constitution, and the House of Representatives recently passed—with substantial Republican support—a bill to repeal the Defense of Marriage Act and guarantee that every state must extend “full faith and credit” (as the constitution puts it) to marriages between same-sex partners performed in any state, just in case Obergefell v. Hodges gets overturned.

Most of the takes I’ve seen on these moves relate to the politics. The political case in favor is that by this means Democrats drive a wedge into the Republican caucus between the religious right and the rest of the party, while associating themselves with overwhelmingly popular positions. (While the country is closely divided on abortion, same-sex marriage and contraception are supported by lopsided popular majorities—and even on abortion you could probably get a lopsided popular majority for making first-trimester abortions legal plus guaranteeing strong health-of-the-mother exceptions for late-term abortions.) The political case against holds that if the bills pass then they take social issues off the table (and if they garner substantial Republican support they make Republicans look more moderate), and meanwhile they associate Democrats more heavily with social issues while what the country really cares about is inflation, energy and crime.

If that’s the debate, I think the case in favor is stronger—but I really don’t care much about that question. The real reason to pass these kinds of bills isn’t that they’re good politics; it’s that they’re what democracy is supposed to be all about.

My home state of New York was one of the few states to pass legislation allowing gay couples to marry before Obergefell made the question moot. A few other states had also legalized same-sex marriages, but in many cases as a result of decisions by their state Supreme Courts. I remember writing at the time (though I can’t find the link at present) how proud I was that New York was advancing rights the way they are ideally advanced: by passing laws. And it wasn’t a trivial accomplishment; Governor Cuomo had to twist a bunch of arms to get the majority he needed. Twisting those arms meant that politicians had put their names on the line for the right to marry, which meant they had an incentive to defend their decision to do so. That didn’t guarantee that the right could never be taken away—but it did mean that it was much more secure than it would have been if they had never put their names on the line, and left the matter to the courts.

When the Supreme Court overturned Roe, it not only returned the question of abortion to the states; it restored to the books restrictive abortion laws that various states hadn’t bothered to overturn because they had been rendered inoperative by Roe. The fact that these laws were still on the books so many years later is a prima facie example of legislative dereliction of duty. The best time for those state legislatures to have done their duty with respect to those laws was whenever they had a popular majority to repeal them. The second best time, with respect not only to abortion but to other laws that remain on the books but that the legislature no longer believes in, is now—not because they have reason to fear that the Supreme Court will reverse themselves on Griswold v. Connecticut or Lawrence v. Texas or whatever other precedent Justice Clarence Thomas wishes he could throw out next, but because the purpose of the legislature is to write the laws. If the state has come to agree with the Supreme Court that a given law is unconstitutional, they ought to put that in writing and not act like that is no longer their job because the Supreme Court has spoken.

This really is fundamental. Core to my understanding of the American constitution, which is a small-d democratic understanding, is the conviction that the constitution belongs to all of us. We can all interpret it, and all of our interpretations are valid. The Supreme Court decides cases, but the Supreme Court does not decide what the constitution means. That’s why it was totally legitimate for Abraham Lincoln to run for office on a platform of overturning Dred Scott and totally legitimate for Donald Trump to run for office on a platform of overturning Roe—because there is no final say in constitutional interpretation.

But if you believe that, then you have to act like it. When you vote, you have to vote in a manner that is in harmony with the constitution as you understand it. And if that’s true of a citizen, it’s all the more true for a legislator. The legislature should never pass a law that they believe to be unconstitutional in the hopes that the Supreme Court will strike it down. That’s an appalling dereliction of duty and a betrayal of democracy. And, for the same reason, the legislature shouldn't leave standing any law that they believe is unconstitutional (or just plain unjust) simply because the Supreme Court has already struck it down. That’s also a dereliction of duty and a betrayal of democracy, even if less-obviously so.

This is something that judicial conservatives are supposed to be particularly attentive to. Much of the point of the decision in Dobbs was that the Court had, with Roe, usurped the proper role of the legislature in attempting to resolve a conflict of rights that the constitution did not explicitly weigh in on. Whether you agree with the argument or not, that’s the argument, and it’s a big part of the rhetoric if not always (by any means) the practice of self-styled judicial conservatives to declare that the worst sin the Court can commit is to usurp the legislature’s prerogatives in this way.

So it’s especially ludicrous to see a conservative legislator like Senator Marco Rubio calling the Respect for Marriage Act a waste of time, as he purportedly did:

Manu Raju @mkraju

Marco Rubio told me that he is a NO on House’s same-sex marriage bill, calling it a “stupid waste of time”

Moreover, as Senator Rubio has since come out against it on the grounds that marriage should be a state matter, we now know that he doesn’t think the bill is a waste of time. On the contrary: Senator Rubio is perfectly willing and able to interpret the constitution himself, and to conclude that Obergefell was wrongly decided—which is why he’s not willing to vote for the Respect for Marriage Act. The same applies to the rest of the Congress, and is the precise reason why Democrats ought to be advancing the bill, and voting for it, if marriage equality is something they believe in.

I hope we see a lot more of this. I hope both Congress and the state legislatures actively set out to repeal obsolete laws that they believe are unconstitutional or simply unjust (there ought to be some standing body making lists of such laws to be repealed), and I also hope they continue to confront the Court with challenges when they believe the Court has ruled incorrectly. That’s what Congress did in response to Employment Division v. Smith, and whether you like the Religious Freedom Restoration Act or not, it told us what the people, speaking through their elected representatives, thought the free exercise clause of the First Amendment required, notwithstanding what the Supreme Court said. They should do something similar in response to Dobbs and any other similar decision where they believe the Court is wrong. That’s democracy in action. Who knows? If they do it consistently enough, the Court might even listen.