Once again, the most hardcore of conservatives in the State Capitol are embarrassing Oklahoma on the national stage—it has been almost a full day since the last time they did this. The newest piece of legislative shamefulness is HB1599, a bill to strip gays and lesbians of the right to marry, which I originally wrote about last month. Amazingly, this one is going forward in the legislature, having been approved in the judiciary committee, a group of legislators who specialize in how the judicial system works. Here is how the system will actually work, should the full legislature prove reckless enough to pass this bill and the Governor shortsighted enough to sign it. The judges will sigh, weep for America a little bit (on the inside), and then try to patiently explain to the legislators that they have already disposed of all the constitutional issues raised by this bill, none of them favorably.
Let’s look at just one of those issues: sovereign immunity. The authors of HB1599 evidently believe they can immunize it from judicial challenge by invoking the Eleventh Amendment:
The Preservation of Sovereignty and Marriage Act shall be fully effective, based on the Eleventh Amendment to the Constitution of the United States and the structure of the United States Constitution, against any contrary federal court ruling.
Since this bill is little more than a legislative attempt to overrule the pro-equality result from the Bishop case, we should ask ourselves whether the federal courts have already considered the possible application of Eleventh Amendment sovereign immunity doctrine to the issue of same-sex marriage. As it turns out, they have, back in August 2006. Here is what District Judge Terence Kern (no relation) had to say about the idea that the Eleventh Amendment shielding such laws from judicial review:
. . . State Defendants argue that Plaintiffs are procedurally barred from bringing their case against the State of Oklahoma based on the doctrine of sovereign immunity under the Eleventh Amendment. The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. United States Supreme Court case law has clarified, however, that notwithstanding state sovereign immunity, “where prospective relief is sought against individual state officers in a federal forum based on a federal right, the Eleventh Amendment, in most cases, is not a bar.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 276-77, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997); Nelson v. Geringer, 295 F.3d 1082, 1096 (10th Cir. 2002). This is based on the Ex parte Young doctrine, under which “individuals may bring suit for prospective injunctive relief to prevent ongoing constitutional violations against individual state officials named in their official capacity even if the state is immune.” Nelson, 295 F.3d at 1096.
The Tenth Circuit has interpreted the Supreme Court’s decision in Coeur d’Alene as recognizing two limitations to the Ex parte Young doctrine: (1) where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right; and (2) where providing prospective injunctive relief would implicate “special sovereignty interests” and result in an intrusion that is the “functional equivalent” of a form of relief barred by the Eleventh Amendment. See id. at 1096-97. Neither limitation discussed by the Tenth Circuit is even potentially implicated here, and the Court concludes that the Ex parte Young doctrine allows Plaintiffs’ request for prospective relief against the State Defendants to proceed.
Bishop I, 447 F. Supp. 2d at 1255
Basically, you don’t get to invoke the Eleventh Amendment as a blanket procedural bar against any and all suits, especially in cases where the plaintiffs are suing for prospective relief from potentially unconstitutional legislation. This has been true for quite nearly as long as Oklahoma has existed as a State, ever since the landmark case of Ex parte Young, which most any first-year law student can tell you about.
Which brings me to my main question: How could a committee which specializes in judicial issues and civil procedure possibly send this bill forward? They have to realize that it is impossible to simply wave away a century of federal jurisprudence with a stroke of the state pen. Is this nothing more than kabuki bigotry theater to them, a stage play to show their constituents that they share their deep and irrational fear of gays and lesbians? Is it a tactical attempt to distract from more serious legislation? Is it a matter of religious faith taking precedence over secular law, and to hell with the courts and the odds?
I’m truly at a loss on this one. Your thoughts?
