In Alabama, one of many states in which a local ban on same-sex marriage rights was struck down by the state’s Supreme Court – a consequence of the United States Supreme Court’s decision in Windsor v. United States – officials are balking at complying with this order.
Alabama Supreme Court Chief Justice Roy Moore recently ordered local probate judges in his state to ignore the federal court if they found that the states were compelled to recognize same-sex marriages. When Mobile County Probate Judge Don Davis requested a clarification from the state’s high court, the justices asserted that they did not have the authority to respond.
“The ensuing legal ‘circus’ has left the probate judges, who had no voice or opportunity to be heard in this matter, in and untenable position – caught between a federal district judge’s order, the statewide procedural value of which is uncertain, and an order from the Chief Justice of the Alabama Supreme Court,” wrote former Probate Judge Mike Brolin. “If the term ‘circus’ is hyperbole, the current predicament at least qualifies as a ‘darned if I do, darned if I don’t’ dilemma for the probate judges, and this is no way to wisely, fairly, and deliberately administer justice.”
“Our rights do not come from God,” CNN anchor Chris Cuomo averred in a lengthy and contentious interview with Moore on Thursday. “That’s your faith, that’s my faith, but that’s not our country.” Cuomo might be surprised to learn that his secular interpretation of the origins of the rights of man is at odds with Thomas Jefferson’s.
But the philosophical arguments that so regularly derail debates on gay marriage rights are often incompatible with dispassionate legal arguments on the matter. Alabama’s predicament is a familiar one resulting from the Court’s decision in Windsor. For many states, that decision created more problems than resolutions.
This confusion prompted the Supreme Court to take up a case that will determine whether same-sex unions are recognized by every state in the Union. It is a decision that many, including some Supreme Court justices, believe has already been made. Justices Antonin Scalia and Clarence Thomas criticized the Court’s recent determination to abstain from preventing Alabama from postponing the implementation of a local ruling legalizing same-sex marriage in that state until the Supreme Court had decided on the issue of gay marriage rights for the nation.
“The court’s action Monday was another signal that it might be paving the way for public acceptance of a decision that marriage is a fundamental right that states may not withhold from gay couples,” The Washington Post noted.
While it is no mystery as to how Supreme Court Justice Ruth Bader Ginsburg will rule on this matter, her recent statements in an interview with Bloomberg indicate that she is confident the Court will clear up the remaining ambiguities that have persisted since the decision in Windsor with a sweeping ruling that effectively legalizes gay marriage nationwide.
Ginsburg told Bloomberg reporters that she did not think that it would take a “large adjustment” for Americans to accept that marriage is a constitutional right. “The change in people’s attitudes on that issue has been enormous,” she said.
“There was a familiarity with people that didn’t exist in the beginning when the race problem was on the front burner, because we lived in segregated communities, and it was truly a ‘we/they’ kind of thing,” Ginsburg added. “It’s not so, I think, of the gay rights movement.”
“Of course, we shouldn’t speak much more about this subject because, one way or another, it will be decided before we leave town in June,” she closed.
Well, it would only be “decided” if the Court rules, as many expect it will, in favor of gay marriage rights nationally. The tea leaves are not difficult to read here. The federal legislature had years to address the issue of gay marriage rights, but the time that the Court provided them to act has passed.
But Supreme Court rulings intended to settle contentious debates on social issues have a habit of exacerbating societal tensions. A ruling in favor of same-sex marriage rights is likely to be met with resistance in states like Alabama. Merely because the Court imposes a resolution on this issue for the remaining states that still support gay marriage bans does not mean the issue will be resolved.