In the wake of a federal judge’s ruling eviscerating Mississippi’s same-sex marriage ban, it seems
professional homophobe constitutional scholar Bryan Fischer of the American Family Association has some advice on the subject: Just ignore pro-equality decisions from federal courts! In an article for Matt Barber’s hate site BarbWire, Fischer writes:
There is one and only one short range solution to a runaway judiciary on the issue of sodomy-based marriage: a governor with the testosterone to stand up and just say no.
Governors take an oath of office to uphold the federal constitution and the constitution of their own state. Any governor in any state with a marriage amendment as a part of his constitution has the right, nay, the duty, to refuse to comply with any judicial order to recognize same-sex marriage.
The Constitution is utterly silent on the topic of homosexuality and marriage, which means, according to the Constitution the Founders gave us, this is an issue reserved exclusively to the states.
For anyone even slightly familiar with American history, Fischer is basically using the same appeal to “states’ rights” that segregationists used fifty to sixty years ago, and asking governors to step into the shoes of the late Alabama governor George Wallace. In 1963 a federal district judge ordered three African-American students be admitted to the University of Alabama, and forbade Governor Wallace from interfering with that court order. Governor Wallace, whose inaugural speech included the now infamous line “segregation today, segregation tomorrow, segregation forever!”, instead chose to stand in the entrance of the university’s Foster Auditorium in order to physically impede the black students — at least until freshly federalized Alabama National Guardsmen forced him aside.
It’s bad enough that Fischer is approvingly citing Jim Crow tactics for his strategy to block marriage equality, but he manages to cite something worse yet:
But it has no police force it can order to arrest or detain anyone. If its unconstitutional rulings are ignored, what will the Supreme Court do? It can issue an arrest order, I suppose, but if a governor will not allow it to be executed, what can the Court do? The answer is nothing.
President Andrew Jackson once said, of a decision handed down by the chief justice of his day, “John Marshall has made his decision; now let him enforce it.” What happened in the face of this defiance from a co-equal branch of government? Precisely nothing.
If you didn’t catch that reference, it stems from the 1832 Supreme Court decision in Worcester v. Georgia, which dealt with our country’s treatment of sovereign Indian nations. As background, the state of Georgia dealing with Cherokees within its borders by annexing their land and awarding it to white citizens. Georgia representatives were also instrumental in convincing Congress to pass the Indian Removal Act, which authorized President Andrew Jackson with the power to negotiate with Native American tribes concerning their removal to unsettled federal territory west of the Mississippi.
However, a white missionary named Samuel Worcester traveled to Cherokee-controlled lands, translated the Bible into the Cherokee language, and befriended the nation’s leaders — even advising them of their legal rights. This did not sit well with Georgia legislators, who passed a law requiring a state license to reside in the Cherokee Nation. Worcester and several other missionaries refused to leave the Cherokee Nation and were arrested and sentenced to hard labor at a state penitentiary for violating the law. Worcester, with the aid of the Cherokee Nation, proceeded to challenge the law in federal court. The case reached the Supreme Court, which declared Georgia’s law unconstitutional and recognized that Indian nations were “distinct, independent political communities retaining their original natural rights.”
Cherokee leaders saw this as a sign that the U.S. would begin to recognize their sovereignty, and bring about an end to the discussion of forced removal. However, Georgia flatly refused to comply with the ruling, kept the missionaries locked in prison, and continued to ask President Jackson to proceed with the removal of Cherokees within Georgia. Jackson, for his part, retorted that the Supreme Court “cannot coerce Georgia to yield to its mandate.” Thus, in 1838, the U.S. Army marched into the Cherokee Nation, herded nearly all Cherokees together, and subjected them to a grueling death march to present-day Oklahoma in what became known as the “Trail of Tears.”
This is what Bryan Fischer is referencing when he makes demands for a “governor with testosterone” who will refuse to comply with the Court: Segregation and Indian slaughter. How very Christian. And how very ironic, since his argument relies on a decision made by the state of Georgia to imprison Christian missionaries.