AAC


recognized by the state of Arkansas. Arkansas law was clear at the time — written into both the constitution (Amend- ment 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 constitu- tionality of those Arkansas laws, there was no dispute about what Arkansas law required and what Arkansas law forbade. Te constitutional question about marriage was resolved


I


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 won- dered 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. Af- ter 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. Te 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 is- suing same-sex marriage licenses. A clerk had no legal authority to issue a marriage license to a same-sex couple and was forbid- den 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. Tere was never a time in the llitigation when it was appro- priate for a clerk to violate Arkansas law, or to defy a binding court precedent. Te same is true for most if not all questions about the con- stitutionality 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 enforce- ment, an IRS agent and the IRS itself lack discretion to refuse to


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LITIGATION LESSONS The presumption of constitutionality


n a former professional life, I was lead counsel for the state of Arkansas in defense of the state’s marriage defi- nition, which was challenged in litigation by same-sex couples who sought to marry and have their marriages


enforce the law on the ground that it might be declared unconstitutional and enjoined by a court someday. If the legislature passes a law charg-


ing the state medical board with re- voking 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 some- day be declared unconstitutional. If the Governor issues an executive order under his statu-


Colin Jorgensen Risk Management Litigation Counsel


tory 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 de- clared 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 consti- tutionality. In court cases, the presumption of constitutionali- ty 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 en- forcement of the law, the law is presumed to be constitutional. Tere also is a presumption that public officials will follow the law in the performance of their duties. Tis means public officials should also presume the constitutionality of validly en- acted 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 de- clared unconstitutional by a court. Logically, public officials cannot be required to follow a court’s ruling about the uncon- stitutionality of a law before the court announces its decision. Nor can or should officials be held liable for performing min- isterial duties and following the law at any time. Te 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 Turgood Marshall wrote in 1825, “the legislature makes, the executive executes, and the judiciary construes the law.” Te 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 consti- tutionality of laws.


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