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The presumption of constitutionality

By Colin Jorgensen, Risk Management Litigation Counsel

In a former professional life, I was lead counsel for the state of Arkansas in defense of the state’s marriage definition, which was challenged in litigation by same-sex couples who sought to marry and have their marriages recognized by the state of Arkansas. Arkansas law was clear at the time — written into both the constitution (Amendment 83) and several statutes. Civil marriage was limited to a marriage between one man and one woman. Regardless of anyone’s opinion at the time about the wisdom or constitutionality of those Arkansas laws, there was no dispute about what Arkansas law required and what Arkansas law forbade.

The constitutional question about marriage was resolved on June 26, 2015, when the U.S. Supreme Court ruled in Obergefell v. Hodges that states must allow same-sex couples to marry. Prior to the ruling, some Arkansas clerks and officials charged with issuing marriage licenses in other states wondered whether they could or should issue marriage licenses to same-sex couples before Obergefell, based on their belief that laws forbidding clerks from issuing same-sex marriage licenses were unconstitutional. Some clerks noted they are sworn by oath to uphold the constitutions, and perhaps that means they should not enforce a law they suspect is unconstitutional. After Obergefell, some clerks wondered if they could or should deny same-sex marriage licenses despite Obergefell, as Arkansas law required them to do before Obergefell.

The legal answer to the clerks’ apparent quandary before and after Obergefell is simple and clear, and it is the same for all such questions — clerks should follow the law as enacted by valid lawmaking authorities, and as interpreted by controlling courts.

Until Obergefell, Arkansas law plainly forbade clerks from issuing same-sex marriage licenses. A clerk had no legal authority to issue a marriage license to a same-sex couple and was forbidden from doing so under Arkansas law. A clerk’s opinion that the Arkansas prohibition was unconstitutional prior to Obergefell did not grant the clerk new authority, or change Arkansas law. So, before Obergefell, all Arkansas clerks were obliged to deny same-sex marriage licenses, without exception. After Obergefell, the marriage definition was enjoined, and clerks were ordered by the Court to grant marriage licenses to same-sex couples on the same terms and conditions as marriage licenses for opposite-sex couples, without exception.

There was never a time in the llitigation when it was appropriate for a clerk to violate Arkansas law, or to defy a binding court precedent.

The same is true for most if not all questions about the constitutionality of validly enacted laws, and the duties of public officials who execute and enforce those laws. Public officials are bound to follow the law and the constitution.

If Congress passes a tax law and charges the IRS with enforcement, an IRS agent and the IRS itself lack discretion to refuse to enforce the law on the ground that it might be declared unconstitutional and enjoined by a court someday.

If the legislature passes a law charging the state medical board with revoking the medical license of any physician performing a late-term abortion, the medical board lacks the discretion to decline enforcement of that law just because it might someday be declared unconstitutional.

If the Governor issues an executive order under his statutory emergency powers granted by the legislature, and charges public officials with enforcement of emergency measures, the charged officials lack the discretion to decline enforcement on the ground that the executive order might someday be declared unconstitutional and enjoined by a court.

You get the idea.

State and federal courts commonly refer to the “axiom” that every validly enacted law has a strong presumption of constitutionality. In court cases, the presumption of constitutionality places the burden of proof on the party challenging a law to prove its unconstitutionality — any doubts about the law will be resolved in favor of the law’s constitutionality. Unless and until a court declares a law unconstitutional and enjoins enforcement of the law, the law is presumed to be constitutional.

There also is a presumption that public officials will follow the law in the performance of their duties. This means public officials should also presume the constitutionality of validly enacted laws and execute and enforce validly enacted laws unless a court issues an injunction and orders that a law not be enforced.

Public officials should not be held constitutionally liable for executing and enforcing a validly enacted law that is later declared unconstitutional by a court. Logically, public officials cannot be required to follow a court’s ruling about the unconstitutionality of a law before the court announces its decision. Nor can or should officials be held liable for performing ministerial duties and following the law at any time.

The presumption of the constitutionality of a validly enacted law, and the presumption that a public official will follow the law, arise from the separation of powers among the three branches of our state and federal governments. As U.S. Supreme Court Chief Justice Thurgood Marshall wrote in 1825, “the legislature makes, the executive executes, and the judiciary construes the law.”

The presumption of constitutionality, and the presumption that public officials will follow the law, are fundamental and essential to the rule of law in our constitutional democracy. And these presumptions allow public officials to follow the law without the burden of questioning or judging the constitutionality of laws.

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