On Tuesday Mike Huckabee told right wing radio host Hugh Hewitt that states have the right to defy the Supreme Court should they rule in favor of nationwide marriage equality. Huckabee has said the same whackadoodle thing in the past (as have Bryan Fischer and others), but this time his remarks have gotten wide notice due to his potential bid for president. Yesterday the Atlantic dissected Huckabee’s claim:
That’s not an entirely novel idea, as Huckabee, a former governor of Arkansas, should know. In 1957, the state believed it could block the Little Rock School Board from adhering to the Supreme Court’s ruling in Brown v. Board of Education. President Eisenhower disagreed, and dispatched troops to show Governor Orval Faubus how wrong he was. Faubus is not an historical model most contemporary politicians would be willing to follow. Huckabee’s legal analysis seems off, too. What happens when a court rules against such a marriage law is that a specific provision—a clause that defines marriage as involving one man and one woman, for instance—is defined as unconstitutional. That doesn’t invalidate the entirety of a state’s marriage laws, so the rest stand and there’s no need for the legislature or governor to act. By analogy, Loving v. Virginia didn’t invalidate all of the Commonwealth of Virginia’s marriage laws; it just meant interracial unions were no longer prohibited. Presumably, a state could avoid having to sanction gay marriages by simply eliminating civil marriage altogether. That’s been suggested in Oklahoma, for example, but no state has actually done so.
The above-linked piece concludes that Huckabee’s idea is “a ticket to dissolving the union, all in the name of preventing same-sex unions.”