I don't think you can. The truth is the Court does not have the authority -- right now it does have the power -- to repeal laws. However, the Court's exercise of that power is illegitimate. It is not a super-legislature, and new institutional responses will have to be developed to deal with the question of unconstitutional laws.
Well, in fairness to the Supreme Court, it never claimed to be a super-legislature. It claimed that determining the constitutionality of a statute is a necessary judicial function:
"If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
"It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each."
In short, the Court's argument is that the judicial branch is authorized only to utilize constitutional laws in the performance of its judicial duties and that it would be improper (in fact, unconstitutional) for the judicial branch to apply statutes which are unconstitutional. The Court did not, in Marbury address the question as to whether its ruling was limited to the case before it or should have broader application.
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How can we deny the Court’s power to rule on the constitutionality of marriage laws but preserve the Court’s power to rule on the constitutionality of anti-gun laws?
I don’t think you can. The truth is the Court does not have the authority — right now it does have the power — to repeal laws. However, the Court’s exercise of that power is illegitimate. It is not a super-legislature, and new institutional responses will have to be developed to deal with the question of unconstitutional laws.
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There is *only* THREE things needed for said response: lamp-post, rope and the will to use them together.
Failing that, the last ‘box’ of necessity (as soap and ballot have failed).