It’s been more than a month now since a Federal District Court Judge in Alabama ruled that state’s ban against same-sex marriage to be unconstitutional, but that doesn’t mean that it has been a smooth road for marriage equality in the “Heart of Dixie.” Almost immediately after the ruling came down, Alabama Supreme Court Chief Justice Roy Moore, who previously made his name over a clash with several Federal Courts over a Ten Commandments monument he had placed on Courthouse grounds, ordered Alabama’s Probate Judges, who issue marriage licenses in the state, that they should not issue marriage licenses regardless of what the Federal Court had said. After both the 11th Circuit and the Supreme Court declined to stay the District Court Judges ruling, several Probate Judges decided to comply with the ruling and issue marriage licenses, but many more didn’t This led attorneys involved in the case to bring at least one of those Probate Judges before the District Judge via motion, which led to yet another ruling from the District Court directing the Probate Judges to issue marriage licenses. Now, even with that ruling still pending and not having been stayed, the Alabama Supreme Court is intervening into the matter and essentially arguing that the Constitution doesn’t apply in the State Of Alabama:
The Alabama Supreme Court on Tuesday night ordered probate judges around the state to stop issuing marriage licenses to same-sex couples, ruling in direct opposition to a federal judge that the state’s ban on same sex marriage did not violate the United States Constitution.
In a 7-to-1 decision, the court ruled that “Alabama law allows for ‘marriage’ between only one man and one woman,” and that the state’s probate judges “have a ministerial duty not to issue any marriage license contrary to this law.”
While the court found that the state’s probate judges were not legally bound by the multiple rulings by a Federal District Court judge, Callie V. S. Granade, in favor of same-sex marriage, it also delivered a long and forceful rebuttal of her decision and the findings of federal judges across the country on same-sex marriage.
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n the decision, the judges insisted they could “interpret the United States Constitution independently from, and even contrary to, federal courts,” and did just that. They took on not just Judge Granade’s ruling point by point but also took issue with the United States Supreme Court’s ruling striking down parts of the federal Defense of Marriage Act in 2013. The judges said marriage is a state matter, but also made a more sweeping case, maintaining that only marriage between a man and a woman “provides the optimum environment for defining the responsibilities of parents and for raising children to become productive members of society.”
Justice James Gregory Shaw was the dissenter, questioning the ruling on several procedural grounds and concluding that the court was venturing into uncharted waters “and potentially unsettling established principles of law.”
Ronald Krotoszynski, a constitutional law professor at the University of Alabama, found the court’s ruling shocking.
“You might read it as kind of a brief or a political document to the Supreme Court of the United States,” he said. “They’re trying to lobby.”
Mr. Krotoszynski said some of Alabama’s probate judges could choose to appeal the State Supreme Court’s ruling to the United States Supreme Court on an emergency basis.
A section of Tuesday’s ruling said probate judges could file papers within five days to argue that they should not be bound by the state justices’ decision.
In a statement, the Human Rights Campaign called the decision “bizarre.”
“The Alabama State Supreme Court does not have the authority to interfere with a federal court order,” said Sarah Warbelow, the group’s legal director. “This order is outrageous and baffling, and no amount of legalese can hide the bare animus that forms the foundation of this extralegal ruling.”
Lyle Denniston notes that the Alabama Justices didn’t just defy the Federal District Court, they also essentially ignored the Supreme Court’s own rulings on the issue:
The majority opinion in the state court, issued unsigned but in the name of the court (“per curiam”), sought to refute every argument made for same-sex marriage as a constitutional matter and lambasted the Supreme Court for making a “moral judgment, not a legal judgment” when it struck down the federal Defense of Marriage Act in United States v. Windsor in June 2013.
The Windsor ruling, which did not take any position on a right to same-sex marriage but spoke favorably of the dignity of such marriages and the need for government to respect such unions, set off the series of lower court rulings that have since made same-sex marriages legal in thirty-six states. The Supreme Court will take up the constitutional question in April, and is expected to have a ruling by early summer.
The Alabama tribunal reached out to decide the constitutional question, according to criticism by the dissenting judge, Justice Greg Shaw. The state’s highest court had been asked by two private groups that oppose same-sex marriage to get involved in the issue after the decision by the federal judge in Mobile, but did not seek a direct ruling on the validity of the state’s same-sex marriage ban under the federal Constitution.
The majority ruled that two private groups could stand in for the state government to raise the constitutional issue, and also allowed one of the state’s probate judges to join in the case to seek an order against issuing marriage licenses to any couple except a man and a woman.
Joining in the 134-page majority opinion were Justices Lyn Stuart, Michael F. Bolin, Tom Parker, Glenn Murdock, Alisa Kelli Wise, and Tommy Bryan. Justice James Allen Main joined all of the opinion, except the section that found that the two private groups had a right to pursue the case as a matter originating in the state’s highest court.
Chief Justice Roy S. Moore, who had undertaken on his own to try to stop the state probate judges from issuing marriage licenses to same-sex couples, and sought to enlist the state’s governor in resisting such licensing, did not take part in Tuesday’s ruling. His absence from it was not explained.
Judge Shaw’s dissent did not take a position on the constitutionality of the state ban on same-sex marriage, arguing that it was premature for the state supreme court to decide that issue when no lower state court had first ruled on it.
The majority opinion canvassed all of the arguments that other courts have used in nullifying state bans on same-sex marriage, and rejected each of them. When it turned to analyzing the Supreme Court’s Windsor decision, it said the last remaining argument that could be used to support a right to same-sex marriage was the “dignity” rationale that was stressed by Justice Anthony M. Kennedy inWindsor.
The state court majority used the technique of disputing the Mobile federal judge’s decision as a way to mount criticism of the Supreme Court. If none of the arguments used by the federal judge support same-sex marriage as a newly defined right, the state court said, that leaves only the “dignity” concept “that comes from” the Supreme Court’s Windsor decision.
There is no “equal dignity” provision in the Constitution, the main state opinion said. “Instead,” it added, “what this notion appears to be is a legal proxy for invalidating laws federal judges do not like, even though no actual constitutional infirmity exists.”
Suggesting that the Court’s Windsor decision essentially “adopts the new definition of marriage,” the state court commented that this notion “necessarily makes a moral judgment about adult sexual relationships….Because the notion is not contained in the Constitution, one may question whether it is nothing more than intuition.”
This is really just latest bizarre development in how the same-sex marriage case has proceeded in Alabama. After losing in the District Court, failing to get a stay from the District Court, Court of Appeals, or Supreme Court, and then losing at the District Court again, the groups fighting the rear-guard action against marriage equality decided to go straight to the Alabama Supreme Court, where they obviously knew they’d get a sympathetic hearing thanks to the previous comments from Judge Moore, They did this without following normal procedure for any other legal case, which would involve starting a case in a lower trial court and then appealing that matter to higher courts, these groups went straight to the Alabama Supreme Court and asked for a ruling that would bind every single Probate Judge in the state and the Court complied with their request in what can only be described as a shockingly bizarre exercise of jurisdiction, a point that the lone dissenter makes clear in his opinion. The state Supreme Court went far beyond that, of course and proceeded to rule on the Constitutionality of the state’s ban on same-sex marriage even though that issue wasn’t really before them at all, and proceeded to issue an opinion that acted as if neither the District Court’s opinion nor the Supreme Court’s opinion in United States v. Windsor either existed or had any legal impact in Alabama. Given the Supremacy Clause and the clear direction from both the District Court and the Supreme Court on this matter, it amounts to a pretty strong thumb in the eye of the Federal Judiciary, something that is unlikely to sit well with the Justices when this matter gets before them, which is likely to happen sooner rather than later.
To a large degree, of course, these are examples of rearguard actions by forces who seem to realize quite clearly where the legal winds are blowing on this issue, The Supreme Court will hear oral argument on the same-sex marriage cases from the Sixth Circuit in April, and a decision is expected in late June Barring something surprising, it seems fairly apparent at this point that the Court will likely strike down bans on same-sex marriage nationwide, and this legal debate will effectively be over with. If anything, this latest insanity from Alabama, which of course has a history of defying Federal Court rulings when it comes to equality, would seem to guarantee that outcome. Until then, though, it seems as though Judge Moore and his fellow Judges will continue to assert that the Constitution doesn’t really apply inside the borders of Alabama.
Here’s the Alabama Supreme Court decision and dissent:
