Dixie Diehard

4 minute read

The same-sex-marriage tide was bound to hit a few new barriers as it rolled across the nation. And so as the U.S. Supreme Court signaled yet again that state bans would soon be swept aside, Roy Moore, the chief justice of the Alabama Supreme Court, responded with a futile attempt to hold back the sea change.

The disarray began on Jan. 23, when U.S. District Judge Callie Granade struck down Alabama’s same-sex-marriage ban, joining a majority of federal judges in circuits from coast to coast. In response, the Alabama Probate Judges Association–which represents the officials who issue marriage licenses–told member judges that they must follow state law regardless of the federal-court ruling. Three days later, Judge Granade clarified her order: all statewide public officials, including probate judges, were to comply.

As the case was appealed to the U.S. Supreme Court, Moore–known for having commissioned a 5,200-lb. granite display of the Ten Commandments at the state supreme courthouse and defying a federal court order to remove it–strode onto center stage. (The tablet drama cost Moore his seat in 2003; he was re-elected in 2012.) Asserting his authority as head of the state judiciary, Moore instructed the probate judges to uphold the ban. Granade’s authority applied only to the attorney general, who is part of the state’s executive branch, he argued, and not its judges.

On Feb. 9, when Granade’s ruling took effect, confusion and inconsistency ensued. In some counties, same-sex couples were wed without incident; in other jurisdictions, state judges followed Moore’s lead. Still others tried to split legal hairs, accepting marriage applications but refusing to give out licenses.

“In a very technical sense, Moore is correct,” says Ron Krotoszynski, a law professor at the University of Alabama. “However, from a wider angle, he’s quite wrong to suggest that this order does not represent a binding ruling on the constitutional status of Alabama’s ban on same-sex marriage.”

Similar federal court rulings have been implemented in more than 25 states in recent months, including such conservative bastions as Wyoming, Indiana and Utah. Only the Midwestern 6th Circuit Court of Appeals has upheld state bans–and that ruling will be scrutinized by the U.S. Supreme Court later this year. Generally, state judges have deferred to federal judges to avoid these kinds of conflicts, says Carl Tobias, a University of Richmond law professor.

Alabama, however, is different. The state has a history of standing up to federal authority that dates back to the Civil War. In June 1963, Governor George Wallace blocked an entrance to the University of Alabama and dared the federal government to integrate the school by force. But the latest clanging of the states’-rights bell is a faint echo of past showdowns. This time, there was no federalizing of the Alabama National Guard, or a phone call to the President.

“The governor is not standing at the door the way Governor Wallace did on desegregation,” says Yale law professor William Eskridge. “The attorney general isn’t saying, Let’s defy this federal injunction. This is really just one official, and he hasn’t attracted a lot of support.”

What Moore’s defiance shared with past episodes was the odor of futility. While only 32% of Alabamans favor same-sex marriage (tied for last in the U.S. with Mississippi), the trend nationwide is in favor of marriage rights, and the Supreme Court appears ready to declare that same-sex marriage cannot be a right in some states but not in others.

No less an authority than Justice Clarence Thomas sees the handwriting on the wall. Dissenting from the court’s decision not to second-guess Granade’s ruling, Thomas gave the strongest hint yet that his colleagues are prepared to take the final step. On the matter of how the court will rule on same-sex marriage later this year, the conservative justice wrote: “This acquiescence may well be seen as a signal of the court’s intended resolution on that question.”

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