If a law or state constitution is struck down as unconstitutional, is there an obligation for the legislature to repeal it? When a court strikes down a federal/state law or state constitution as unconstitutional, can the legislature just leave that unconstitutional provision on the statute book as long as the executive does not enforce it, or is there an obligation to repeal the unconstitutional provision? I have been reading US state constitutions recently and noticed many have provisions barring same-sex marriage, which are obviously unenforceable following the Supreme Court decisions on the matter. Can the states just leave these provisions in their constitutions indefinitely ?
No, there is no obligation to repeal It is common for statutes held to be unconstitutional to be left on the books decades later, and for others which quite likely would be so held if anyone tried to enforce them to be similarly left for even longer periods. It is somewhat less common for state constitutional provisions, but it does happen, and as those commonly take more than a simple legislative act, there is even less motivation to go through the troublesome process in such cases. There are even a few provisions in the US constitution which have become obsolete, but not actually amended away. For example, the so-called 'three-fifths compromise', which counted slaves as worth 3/5ths of a person for computing representation, was effectively repealed by the Civil War and the 13th amendment, but was not formally removed. That section was actually formally replaced by the 14th.
The first thing to note is that your question is kind of the wrong way around. US states are sovereign and generally have the ability to make any kind of laws they want, unless they violate some specific tenet of federal law or the US Constitution. You suggest, for instance, that arguments which are "culturally founded" have no place in the law, but that's just your opinion, and there isn't generally anything preventing a state from making law based on such things, should its elected legislature see fit to do so. (Indeed, one could argue that nearly all laws are in some sense "culturally founded", since they are based on some notion of what kind of behavior is or is not appropriate, and those tend to be culturally based.) So legally speaking, the states aren't, by default, obligated to give any sort of justification for the laws they made. The burden of proof is on the other side. Someone seeking to overturn those laws would have to convince a court that the laws violated some specific provision of the Constitution (or another superior law). If they couldn't convince a court of this, the law would stand. From what I have read, before the US Supreme Court's 2015 legalization of same-sex marriage in Obergefell v. Hodges, the previous precedent was set in 1971 by the Minnesota Supreme Court in Baker v. Nelson. The decision itself is quite short and is worthwhile to read. Quoting Wikipedia's summary, the plaintiffs claimed that Minnesota's restriction of marriage to opposite-sex couples violated several provisions of the US Constitution: First Amendment (freedom of speech and of association), Eighth Amendment (cruel and unusual punishment), Ninth Amendment (unenumerated right to privacy), and Fourteenth Amendment (fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause). The Minnesota court determined that none of the plaintiffs' objections were valid. Again, I'll refer you to the decision for the details, but the court mainly focused on their Fourteenth Amendment arguments (the others may have been addressed by the trial court, whose opinion I can't find online). They wrote: The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. They specifically rejected any analogy to bans on interracial marriage, which had been held unconstitutional in Loving v. Virginia: But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex. Baker appealed to the US Supreme Court, but his appeal was dismissed "for want of a substantial federal question," without any further explanation. (Nobody quite seems to understand what they meant by that, but here is an essay discussing the situation in a little more depth.) The effect of the dismissal was that the Minnesota court's decision became binding precedent upon the whole nation - laws against same-sex marriage didn't violate those provisions of the Constitution. And that was how matters stood for 44 years until Obergefell. (Of course, there was nothing to stop individual states from deciding to allow same-sex marriage, and some in fact did so in the meantime.) You have suggested that laws against same-sex marriage were religiously motivated. This might suggest an argument that they would violate the Establishment Clause of the First Amendment. The plaintiffs in Baker didn't raise that point, so it wasn't considered in the Minnesota court's opinion. I don't know whether any other courts have considered it; no such argument was mentioned in the opinion in Obergefell.
This is an open question in Colorado, where there's an ongoing challenge to the state's supermajority requirement in Kerr v. Hickenlooper. The state requires a supermajority for tax or spending increases, and several lawmakers challenged the law as violating the Guarantee Clause, which guarantees each state a republican form of government. The case has been going on for a long time. It's about seven years old now, and they're still arguing about who has standing to bring the lawsuit. The latest development is that no one had standing, but that decision is currently being appealed in the Tenth Circuit. A bigger problem than standing, though, may be justiciability. In Huddleston v. Sawyer, the Supreme Court of Oregon, rejected a challenge to supermajority requirements for reducing citizen-approved sentences for crimes, and in Lefkovits v. State Board of Elections, the Northern District of Illinois did the same with respect to judicial retention votes. Both courts concluded that supermajority requirements were a political issue, not a legal one. The justiciability concerns should be tempered by two considerations. First, there's an argument in Kerr that because taxes and spending are such core legislative functions, that it should be harder to uphold restrictions on the legislature's ability to vote on them. Second, there's U.S. Supreme Court precedent in New York v. U.S. suggesting -- but not deciding -- that the questions about justiciability are overblown: The view that the Guarantee Clause implicates only nonjusticiable political questions has its origin in Luther v. Borden, in which the Court was asked to decide, in the wake of Dorr's Rebellion, which of two rival governments was the legitimate government of Rhode Island. The Court held that “it rests with Congress,” not the judiciary, “to decide what government is the established one in a State.” ... Over the following century, this limited holding metamorphosed into the sweeping assertion that “[v]iolation of the great guaranty of a republican form of government in States cannot be challenged in the courts.” This view has not always been accepted. In a group of cases decided before the holding of Luther was elevated into a general rule of nonjusticiability, the Court addressed the merits of claims founded on the Guarantee Clause without any suggestion that the claims were not justiciable. More recently, the Court has suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions. ... We need not resolve this difficult question today. My money says that the question is not authoritatively answered in my lifetime.
This is a very straightforward point of constitutional law. Chapter and verse from the Constitution, art 224: (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
There are two cases to consider. If there is some evidence that the city intends to enforce the ordinance, then the business can go to court for an injunction preventing the city from doing so, if they can show that such enforcement would harm them (e.g. by making them impose a records policy they don't want). They don't have to risk arrest by actually violating the ordinance first. In granting the injunction, the court would likely rule that this particular ordinance is unconstitutional, which seems to be the &quot;voiding&quot; that you're looking for. If the city shows no signs of wanting to enforce the ordinance (e.g. they are well aware that it is unconstitutional and not legally enforceable), then a request for an injunction would likely be dismissed as not ripe. Courts do not want to waste their time on cases where there is no real dispute between the parties, or on issuing orders for an entity not to do something that they weren't going to do anyway. It's understandable that the business might wish for an explicit ruling anwyay, in case they fear that the city will change its mind tomorrow and start cracking down, but unfortunately for them, courts do not agree that this is worth doing. Note in either case the ordinance will remain on the books until such time as the town council (or other relevant legislative body) should vote to repeal it. Courts have no power to make that happen, no matter how unconstitutional the ordinance might be. So the business might find it more effective to petition the council for a repeal.
How can incitement of imminent lawless action not be constitutionally protected? The short answer to your question is &quot;because the Supreme Court of the United States said so.&quot; In Brandenburg v. Ohio SCOTUS found that the Constitution protects speech that calls for lawless action in the abstract but does not protect speech &quot;directed to inciting or producing imminent lawless action and is likely to incite or produce such action&quot;. The court's per curiam opinion seems to treat the decision as self-evident - it's quite short after discussing the facts of the case. However, Justice William O. Douglas wrote a concurring opinion (his &quot;caveat&quot;) that discussed and was critical of previous decisions in such cases, including the use of the 'clear and present danger test', so his opinion is useful for a brief history of First Amendment judgments to that point (Brandenburg). The Declaration of Independence is not law. Following &quot;a history of repeated injuries and usurpations&quot; and failures to reach political settlements it asserts a moral right to overthrow the tyranny of the British crown. It alludes to rights, it does not &quot;enshrine&quot; or create a legal right that the judiciary can interpret. Judges might refer to the Declaration in their judgments, not using it as legal authority but an articulation of fundamental values.
A good starting point would be the SCOTUS opinion, or everything on SCOTUSblog, especially the application for injunctive relief filed on Aug. 30. There is a long sequence of petitions and orders which ask the courts either to issue an injunction preventing the law from taking force, or to vacate an administrative stay of proceedings by the lower court regarding petitioner's challenge. The lower court denied the petitions, therefore petitioners turn to SCOTUS to get an injunction against the law. Then you can turn to the SCOTUS opinion to see what the reasons were, for and against the petition. The majority position is that an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. The majority concludes that The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. Immediately after this the court comments that federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. However, it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention The law states that Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who and the named respondents (government workers of various sorts) all appear to be precluded from filing an action – thus an injunction against the judge is superfluous since he cannot file a lawsuit anyhow. It is also unclear whether SCOTUS can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. When SCOTUS say &quot;it is unclear&quot; in this context, they mean that petitions did not adequately demonstrate that the court can in fact issue such an injunction. It's not that SCOTUS cannot decide such matters after extensive consideration of the facts / arguments and discussion, it's that the standards for an emergency action require something that the court found lacking in the petition: we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit.
The religious freedom argument has no legs following Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. With respect to the "involuntary servitude", this was dealt with in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). The engagement of Federal power relied on the interstate commerce clause but the current case, as a state law matter, does not need to do this. Basically, by voluntarily providing the goods/service to the public, they agree that they will provide it in accordance with the law governing that kind of commerce. They are free to not provide it to anyone but if they choose to supply it they must supply it to everyone (subject ti normal rules of commerce like the customer actually paying etc.).