South Carolina and Texas lawmakers who oppose same-sex marriage are sponsoring bills that would eliminate salaries for state and local officials, including judges and county clerks, who grant marriage licenses to gay couples or recognize such unions.
Voters in both states have approved constitutional bans on same-sex marriage, but gay and lesbian couples in South Carolina have been able to wed since a November federal court ruling. A federal judge struck down Texas marriage ban in February of last year, but the decision is on appeal.
South Carolina state Rep. Bill Chumley, a Republican, says he doesnt care what the federal courts say. He wrote the South Carolina bill and says hes been in indirect contact with the Texas lawmaker, Republican Rep. Cecil Bell, whos sponsoring nearly identical legislation.
I dont have a problem with the people it might affect, Chumley says. I dont judge them. Our issue is with the amendment to the [state] constitution being thrown out. I believe the people of South Carolina have a sovereign right to say what they want and they have done that.
Bell says he was inspired by Chumleys bill and worries federal courts legalizing same-sex marriage would cause the moral degradation of the fabric that holds Texas together. He says such rulings would also be a total usurping of the sovereignty of the state of Texas, which he intends to prevent.
The lawmakers say they are defending their states' 10th Amendment rights, and Chumley in particular has a record of dramatically pushing for his states prerogative to chart its own course. In 2013, he unsuccessfully pushed legislation to imprison or fine officials who implement the Affordable Care Act.
Unfortunately for the legislators, legal scholars say the bills' fates should they become law are tied to the fates of the state marriage cases.
If the federal courts end up finally concluding likely as a result of a Supreme Court decision that there is a federal constitutional right to have ones same-sex marriage recognized by states, then these laws would obviously be unconstitutional, says Eugene Volokh, a professor at the University of California-Los Angeles School of Law.
Both bills say the legislation is immune from federal court challenges under the Constitutions 11th Amendment, which limits the ability of people to sue states. Volokh says that's not accurate and that the bills obviously cant trump federal law.
The bills also order state courts to dismiss any challenges to the legislation. Its unclear if those provisions are permissible under the separation of powers established in state law.
Volokh additionally points out that withholding judges pay appears to violate the South Carolina Constitution, which says salaries cannot be diminished during their term in office.
Jonathan Turley, a George Washington University law professor, also says the bills should they become law likely would be found unconstitutional if federal courts find a constitutional right to same-sex marriage, comparing them to state abortion restrictions that are often struck down.
