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Friday, June 28, 2013

What Happens To a Law That the Supreme Court Declares Unconstitutional?

In the case of US v. Windsor, the US Supreme Court ruled that a key section of the Defense of Marriage Act is unconstitutional.  So what happens to that section?  Does it disappear?  No, it becomes unenforceable, but it technically stays on the books until Congress repeals it.

The same applies to state laws, as Brian Palmer explained at Slate earlier this year:
Judges cannot reach into statue books and erase laws. Some state legislatures proactively repeal unconstitutional laws, either one at a time or in batches after a few of them pile up. Others just leave them there, because repeal would suggest agreement with what they consider to be the anti-democratic court decision. The Texas law criminalizing homosexual sex, for example, remains part of the state penal code even though the Supreme Court invalidated it nine years ago in Lawrence v. Texas. It’s not mere laziness but an act of protest by offended legislators. Democrats have repeatedly introduced bills to repeal the unconstitutional language, but they are never enacted into law. (For anyone worried about the legal implications of their sexual preference, the statute books contain an annotation explaining that the anti-sodomy law is invalid.) Louisiana law still imposes the death penalty on those who rape children, although the Supreme Court banned this use of capital punishment in 2008. Lawmakers probably don’t want to appear soft on child rape.

State constitutions, which are more difficult to amend than ordinary statutes, are rife with unconstitutional language. Arkansas, Pennsylvania, South Carolina, Tennessee, and Texas, along with North Carolina, all have language suggesting that atheists are barred from office.

The Supreme Court justices are pretty tolerant of states thumbing their noses at them from afar, but they will not tolerate meaningful resistance. After the Supreme Court declared school segregation unconstitutional in the landmark 1954 case Brown v. Board of Education, Arkansas passed a series of laws attempting to nullify the federal decision, forcing the court to issue a second decision emphasizing that the nine justices, and not the states, were the final arbiters of constitutionality.
h/t Richard Ahne