We already knew that the American Family Association is as extreme as you can get. But how extreme are they? Apparently it's now embracing a constitutional theory that even the Federalist Society, the fountainhead of right-wing jurisprudence in this country, has soundly rejected.
Last week, Christian apologist Frank Turek--who has made it his mission to reverse the trend of Christian kids leaving the faith in college--made a shocking suggestion on Wildmon's show on American Family Radio, Today's Issues. He claimed that any state where a ban on same-sex marriage has been overturned by a court doesn't have to appeal that decision. No, no. All it has to do, Turek says, is simply refuse to enforce the decision. This goes way beyond the usual wingnut argument that judges have no right to overturn laws adopted by direct vote of the people. Turek was advocating nullification, the utterly discredited notion that a state can unilaterally refuse to enforce a federal law or court decision within its borders. Wildmon loudly endorsed this notion, saying that the governor was best positioned to end what he called "this tyrannical ruling by federal judges." I wrote this up in greater detail at Liberal America--check it out here.
As any civics or history student knows, states made several attempts to nullify federal laws before 1861. Although the Civil War seemed to end this nonsense, a few Southern states tried this tactic in the aftermath of Brown v. Board of Education. The Supreme Court seemed to put an end to this once and for all with Cooper v. Aaron, which unequivocally declared that states do not have the power to nullify federal law.
While digging more on this story, I wondered--has the Federalist Society lent its support to nullification? After all, it would seem that the logical end of tentherism is to support this crackpot theory. Well, it seems there is some sanity after all in that outfit. Earlier this year, the Federalist Society took a look at South Carolina's attempt to pass a law declaring Obamacare null and void within the borders of South Carolina. The Federalist Society's Christopher Bertolomucci asked whether South Carolina had the power to pass such a law. His answer was a resounding "no." (warning, self-downloading PDF)
The Supremacy Clause of U.S. Constitution provides that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” A federal statute may be challenged in court, by a party with standing, on the ground that the statute is contrary to the Constitution or beyond the authority of Congress. If the court upholds the federal statute, the parties to the case are bound by the court’s judgment. Although the judgment may be appealed, a judgment by the Supreme Court is both binding and final.
A State cannot nullify the judgment of a federal court rendered in a case to which the State was a party. (emphasis mine)
Wow. Couldn't be more clearer than that. When a conservative group is advocating a legal theory that even the Federalist Society says is crackpot, you know it's gone off the deep end.