feature image via AP Photo/Brynn Anderson
Alabama is quickly becoming one of the fiercest and most complicated battlegrounds as the fight for legalized same-sex marriage in all 50 states marches towards its (almost certainly) inevitable conclusion. Though an order by a federal court has struck down Alabama’s same-sex marriage ban, probate court judges in 51 of Alabama’s 67 counties were refusing to issue marriage licenses to gay couples.
The conflict stems from a letter issued by the state Chief Justice Roy Moore to the state’s probate judges, ordering them to ignore the federal court order under the justification that the federal court lacked the jurisdiction over Alabama’s definition of marriage. It’s certainly not the first time that Moore has decided that federal court orders don’t apply to him or his state. In 2003, Moore had the office of Chief Justice stripped from him by the state’s judicial ethics board for his refusal to remove the monument to the Ten Commandments from Alabama Judicial Building, despite being ordered by a federal judge to do so. Unfortunately, violating oaths of offices and ignoring the Rule of Law appear to be the just kind of thing Alabama voters like in a public official — Moore was again elected Chief Justice in 2012.
Alabama Governor Robert Bentley, also a Republican, similarly does not appear inclined to follow the order of the federal court. Citing the unusual dissent issued by Justices Antonin Scalia and Clarence Thomas to the high court’s rejection of the Alabama’s last-hope stay-of-order request, Bentley issued a statement:
“I have great respect for the legal process, and the protections that the law provides for our people. I am disappointed that a single Federal court judge disregarded the vote of the Alabama people to define marriage as between a man and woman. 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.’”
Bentley went on to state that he would not “take action” against Probate Court judges who did issue marriage licenses, though Chief Justice Moore’s letter to the judges contained language informing them that, were they to ignore his order, the Governor would “act using the legal means at his disposal.”
Some court-watchers believe that, while Moore’s decision and order are mean-spirited and offensive, a legal loophole may actually put him on the right side of the law (at least enough to avoid another trip to the judicial ethics board). The case that brought marriage equality to Alabama (at least in theory) named the state’s Attorney General, Luther Strange, as the defendant, and so the resulting court order is directed at him. But under Alabama law, Strange has no authority over the probate court judges, hence Justice Moore’s insistence that his order is enforceable. Only time will tell if this provision will save him from becoming the first state Chief Justice to be stripped of his office twice.
Happily, all the legal quagmire hasn’t stopped dozens of happy Alabama queer couples from finding the few courthouses complying with the order, and getting themselves married in a thoroughly heart-warming, tear-jerking fashion. For those who are finding themselves stonewalled by their local court, a hotline has been set up by Equality Alabama and the ACLU of Alabama to get legal assistance and find locations where a wedding license is available.
Even with all the political posturing, Alabama may be doing little more than delaying the inevitable and engaging in conservative electioneering. The Supreme Court will hear oral arguments on a package of cases challenging same-sex marriage bans later this term, and is expected to issue a ruling in June. Many are reading the text of the Scalia/Thomas dissent as a first clue that the court is poised to clear the way nationwide marriage equality, although there’s no way to be sure for now.