The Supreme Court will decide whether to allow same-sex marriage nationwide later this year. But it’s leaving little doubt which way it’s leaning.
The latest evidence came Monday, when the high court denied Alabama’s request that gay marriages be blocked while the state appeals a federal judge’s ruling that allowed gays and lesbians to wed…
[M]ake no mistake: If the justices thought there was a good chance they would rule against same-sex marriage in the upcoming cases involving Michigan, Ohio, Kentucky and Tennessee, they likely would stop couples from marrying elsewhere.
[Clarence] Thomas brought the issue out into the open. He issued a statement, in which he was joined by Justice Antonin Scalia, explaining why they would have granted a stay to Alabama — the first word from a justice suggesting the expected end result in the matter.
In the short, three-page statement, Thomas criticized the court for “look[ing] the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor,” the 2013 decision striking down the Defense of Marriage Act’s ban on federal recognition of same-sex couples’ marriages.
“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” he wrote, referring to the question of whether bans on marriage for same-sex couples are constitutional. “This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.”
In a dramatic show of defiance toward the federal judiciary, Chief Justice Roy S. Moore of the Alabama Supreme Court on Sunday night ordered the state’s probate judges not to issue marriage licenses to gay couples on Monday, the day same-sex marriages were expected to begin here.
“Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the Alabama Constitution or state law, the chief justice wrote in his order.
The order, coming just hours before the January decisions of United States District Court Judge Callie V. S. Granade were scheduled to take effect, was almost certainly going to thrust this state into legal turmoil. It was not immediately clear how the state’s 68 probate judges, who, like Chief Justice Moore, are popularly elected, would respond to the order…
“We are continuing to move forward tomorrow,” [Equality Alabama chairman Ben] Cooper said. “If we walk in and licenses are refused, if they do not comply with the federal order, then these probate judges could be personally liable,” said Mr. Cooper, who added that he expected legal actions to be filed against the individual probate judges if they do not issue the licenses.
In his order issued Sunday night, Moore wrote that if any probate judge defies the order, Governor Robert Bentley would have the responsibility of ensuring that state law is “faithfully executed.”
He has also said that the judges are not bound by the orders issued in that case, Searcy v. Strange. Instead, he said, probate judges fall under the direct supervision and authority of the chief justice.
He contends that the district court that issued a ruling striking down the state’s same-sex marriage ban has not issued an order directed to probate judges, who are not bound by the opinions of that court.
Is Moore justified as a legal matter? The answer, I believe, is no — but the no is complicated. As I explained when Moore first expressed his opinion in a letter to Alabama’s governor, Moore’s position is based on the view, widely shared by state supreme courts and many law professors, that state courts aren’t bound by interpretations of federal law or the Constitution that are issued by U.S. district courts or U.S. courts of appeal. According to this view, which the Supreme Court has never officially adopted or denied, only decisions of the U.S. Supreme Court about federal law or the Constitution are binding on the state courts, because only the Supreme Court reviews state court judgments directly.
Even if this view is accepted, it doesn’t and shouldn’t apply to the Alabama probate judges under these circumstances. The logic of the state courts as independent interpreters of the Constitution only makes sense where an independent case is before them. Here, there’s no challenge to Alabama’s marriage law before the state probate courts.
Instead, the federal district court in ruling the state’s marriage law unconstitutional has effectively ordered the state’s officials to issue marriage licenses. The probate judges are simply functionaries of the state when it comes to issuing the licenses. They should therefore be bound by the federal district court’s order, which applies specifically to their function. Failure to obey would amount to a form of legal contempt.
It was not immediately clear how probate judges across the state would react to the seemingly conflicting orders — although one, a spokesperson in Montgomery County Probate Judge Steven L. Reed’s office, confirmed to BuzzFeed News that they are issuing marriage licenses to same-sex couples this morning. Jefferson County Probate Judge Alan King says his office will issue licenses as well, the New York Times reports. Madison County Judge Tommy Ragland’s office confirmed to BuzzFeed News that they will issue same-sex marriage license between 8:30 a.m. and 4:30 p.m. CT today. Same-sex couples are marrying in Etowah County as well.
Although the probate judges are not currently a party to the rulings that the Supreme Court allowed to go into effect Monday morning from U.S. District Court Judge Callie Granade, Granade has made clear that a same-sex couple could come to her seeking to intervene in the cases if a probate judge declines to grant a same-sex couple a marriage license. Should that happen, it is not clear whether Moore would step aside and allow a license to be issued.
Additionally, if a probate judge does grant marriage licenses to same-sex couples, it was not yet clear how Alabama Gov. Robert Bentley would react. Moore’s Feb. 8 order stated that it would be Bentley’s responsibility to address the situation if a probate judge did so.
Governor Robert Bentley on Monday issued a statement on the issuance of same sex marriage licenses by Alabama Probate Judges. The statement is below…
“I agree with the dissenting opinion from U.S. Supreme Court Justices Clarence Thomas and Antonin Scalia when they stated, ‘Today’s decision represents yet another example of this Court’s cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds.’
“This issue has created confusion with conflicting direction for Probate Judges in Alabama. Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue.
“We will follow the rule of law in Alabama, and allow the issue of same sex marriage to be worked out through the proper legal channels.”
In major county seats like Birmingham, Montgomery and Huntsville, same-sex couples lined up outside courthouses as they opened and emerged smiling after being wed.
At the Jefferson County Courthouse here, Judge Michael G. Graffeo of Circuit Court officiated, at times tearfully, at the civil wedding of Dinah McCaryer and Olanda Smith, the first to emerge from the crowd of same-sex couples on Monday morning. “I now pronounce Olanda and Dinah are married spouses, entitled to all rights and privileges, as well as all responsibilities, afforded and placed upon them by the State of Alabama,” Judge Graffeo said.
But in at least 50 of Alabama’s 67 counties, the county Probate Courts, which issue the licenses, were not giving them to gay and lesbian couples, according to the Human Rights Campaign, a gay rights group. Many Probate Court judges declined to grant any marriage licenses.
With windows at the marriage license department in Mobile County remaining closed for more than 2½ hours Monday, attorneys for a lesbian couple asked a federal judge to hold Probate Judge Don Davis in contempt.
The lawyers, Christine Hernandez and David Kennedy, at first urged patience as Davis huddled with lawyers to figure out how to respond to conflicting court orders from U.S. District Judge Callie V.S. “Ginny” Granade and Alabama Supreme Court Chief Justice Roy Moore…
Finally, Davis took the bench, prompting Kennedy and Hernandez to ask Granade to hold him in contempt and take any enforcement action she deems appropriate. Henandez told reporters that remedies could include fines and even incarceration. “There’s a very real possibility somebody could be going to jail,” she said.
States’ rights delayed the equality of blacks.
In contrast, federalism has hastened the advance of gay marriage. According to Pew, the first time more Americans supported than opposed gay marriage was in 2011. And it didn’t reach 50 percent support until 2013—the same year that a key provision of the Defense of Marriage Act was ruled unconstitutional (an outcome owed partly to states’ rights arguments). And it’s hard to imagine gay marriage getting through a post-2013 Congress with even one chamber controlled by Republicans…
The earliest states to legalize gay marriage almost certainly helped to shift public opinion at the national level: The nation saw touching photographs from weddings; activists newly convinced in the possibility of victory joined the cause; and everybody saw that no apparent catastrophe ensued after same-sex couples wed. More states started grappling with the fact that their residents could go elsewhere to marry even if they weren’t yet allowed to do so in their hometowns. And for some, refusing to recognize the union of people who’d wed elsewhere was too much.
That’s what changed their mind.