In face of shifting public opinion and the tidal wave of court rulings in support of same-sex marriage, it's fair to observe that the religious far-right is desperate. Its first move was the mostly failed attempt to sneakily pass so-called "religious freedom" laws that transparently carved out excuses for virtually anyone to discriminate against same-sex couples and LGBT citizens under the completely unverifiable and nonexistent umbrella of anti-same-sex marriage biblical dogma.
It's not the first time the conservative movement has employed devious backdoor means to restrict civil liberties. Abortion is still perfectly legal, yet Republican legislatures across red-state America have passed laws that make it almost impossible to actually undergo the (again, totally legal) procedure. Fetal personhood laws, fetal heartbeat laws, waiting-period laws, trans-vaginal ultrasound laws -- not to mention one law that made it illegal to operate a women's health clinic outside of a 60-mile radius of a hospital -- have all functioned as de facto abortion bans.
And now, as same-sex marriage and LGBT equality expands and calcifies, the exact same strategy is being deployed against it. Almost immediately out of the gate, we observed a surge of aforementioned "religious freedom" laws, and now, as those laws are rolled back, an all new angle is being teased and test marketed by actual GOP presidential candidates.
Among the Republican hopefuls, we first heard about the head-scratching notion of "judicial law" from Dr. Ben Carson, who clearly missed a few civics and government classes. While discussing the forthcoming Supreme Court decision on same-sex marriage, Carson claimed that the president isn't required to carry out "judicial law" (with regards to that issue). In other words, if the Supreme Court strikes down various bans on same-sex marriage, a would-be President Carson could merely ignore it and sign legislation or executive orders that would re-establish a federal-level ban -- The Defense of Marriage Act 2.0 or similar.
One time is an outlier, but on Fox News Sunday this past weekend, former Arkansas governor Mike Huckabee repeated nearly the exact same thing, but this time around, Huckabee referred to "judicial law" as "judicial supremacy."
“Judicial review is exactly what we have lived under; we have not lived under judicial supremacy. The Supreme Court can’t make a law; the legislature has to make it, the executive has to sign it and enforce it. The notion that the Supreme Court comes up with a ruling and that automatically subjects the two other branches to following it defies everything there is to equal branches of government.”
It's really not even worth debunking Huckabee's intellectually violent interpretation of the U.S. Constitution here, not to mention his complete ignorance when it comes to 1803's landmark Marbury v Madison decision, establishing judicial review as a check against unconstitutional legislative overreach. It's not worth it because anyone with even a basic understanding of how the federal government operates should already know that Huckabee is painfully wrong.
What's considerably more germane is the answer to the question: Why are Huckabee and Carson so brutally and deliberately bungling this?
Not unlike the "religious freedom" laws or the various anti-choice laws, Huckabee is laying the groundwork for an incredibly dangerous gambit to keep same-sex marriage illegal. And while it's easy to focus on the shiny objects in Washington, the president and the Supreme Court, the real focus ought to be directed upon governors and state legislatures where the real action could take place, and especially where the real power resides, given how the courts have been striking down state-level bans. For the last several years, the activist far-right has been screaming for governors to ignore court decisions to overturn same-sex marriage bans, and now, GOP candidates appear to be actively mainstreaming the idea.
Radical anti-gay activist Bryan Fischer, director of issues analysis for the American Family Association, has mostly led the charge, insisting, "Governors have been meekly capitulating to judicial tyranny, one after the other, and timidly abandoning their posts. Time for governors to stand up to judicial tyranny." Sound familiar?
Judicial law, judicial supremacy, judicial tyranny -- it's all the same gibberish meant to repackage and bastardize the accepted process of "judicial review" as something dictatorial. So far, the old "judicial activism" meme has been mostly ineffective on this front, so it's being rebooted and amplified with more harrowing characteristics that sound closer to the mad ravings of conspiracy theorist Alex Jones than what ought to be the more adult tone of a presidential candidate.
Randy Thomasson, from the Campaign for Children and Families, distributed a list of 31 Republican governors for conservative voters to contact and demand they ignore the courts. Thomasson told the far-right World Net Daily:
“I don’t expect any defense of real marriage from Democrat governors, who are virtually locked into the delusion of homosexual ‘marriages,’” he said. “But Republican governors who say they believe in man-woman marriage – well, that’s an entirely different story with different expectations.”
It's one thing for the fringe screechers, playing in their own little sandbox, to dabble with this strategy; but it's another thing entirely for top-shelf players in the GOP to embrace "religious freedom" laws and nonsensical "judicial supremacy" memes. The more these ideas ping back-and-forth around the far-right bubble, the more acceptable and pervasive they'll become, offering just enough popular cover for governors to take the initiative and to act accordingly. Of course, by ignoring established checks and balances, governors or even a potential GOP president could precipitate a constitutional crisis of epic proportions. And given how the traditional press has grown too timid to challenge the conservative movement, there might even be additional cover from cable news, online and print. Indeed, Tuesday morning, NBC News' Mark Halperin backstopped Huckabee's "judicial supremacy" remarks.
We live in an era when 99-percent scientific consensus of climate change isn't fool-proof enough, just as long as Republican talkers repeat the same hoax-mongering all day, every day throughout the conservative entertainment complex. It can happen again with "judicial supremacy," and same-sex marriage activists as well as constitutional lawyer would do well to be prepared.