\n\tRoy Moore, the chief justice of the Alabama Supreme Court, has had run-ins with the federal judiciary before, but never with the Supreme Court of the
\n\tUnited States. That changed in February, when the High Court, without explanation, refused to halt the wave of same-sex weddings about to overtake Alabama
\n\tafter a federal judge and an appellate court let stand a ruling striking down the state\u2019s ban on same-sex marriage. <\/p>\n
What happened afterward with Moore, his subordinate judges, and gay nuptials across the state can be best described as constitutional chaos, bringing to
\n\tmind Alabama\u2019s own dark past in fighting back constitutionally decreed desegregation. But to make sense of it—and to understand how it all fits in the
\n\tfuture of same-sex marriage in America—some context is necessary. <\/p>\n
The original decision invalidating Alabama\u2019s prohibition on same-sex marriage, by U.S. District Judge Callie V. Granade, appears to have sent Moore into
\n\tcrisis mode. In late January, a few days after Granade\u2019s ruling, Moore penned a letter to Governor Robert Bentley raising red flags about \u201cserious,
\n\tlegitimate concerns about the propriety of federal court jurisdiction\u201d over Alabama laws, but he also noted that those laws \u201chave always recognized the
\n\tbiblical admonition stated by our Lord.\u201d Moore quoted Christ\u2019s words in Mark 10:6-9, notable for its famous marriage pronouncement: \u201cWhat therefore God
\n\thath joined together, let not man put asunder.\u201d<\/p>\n
Moore didn\u2019t only cite Scripture. His reasoning rested on historic precedents from his own court, including a nineteenth-century decision calling marriage
\n\t\u201ca divine institution,\u201d one that requires contracting spouses to observe \u201chigher moral and religious obligations than those imposed by mere human
\n\tinstitution or government.\u201d He chastised the federal courts for the \u201cdestruction\u201d of marriage, and disparaged federal judges\u2019 reliance on equal-protection
\n\tand due-process principles enshrined in the Constitution as mere \u201cspecious pretexts.\u201d <\/p>\n
{Image_1}<\/p>\n
Strong language, no doubt, though unclear if Bentley heeded any of it. The state certainly drew strength of its own to fight Judge Granade\u2019s ruling all the
\n\tway and to get the Supreme Court involved, if necessary. (This was a purely procedural battle; the aim was to stop the ruling from taking effect while the
\n\tmerits of the appeal ran their course through the judicial chain, a much lengthier process.) <\/p>\n
In the days Alabama awaited a response from the justices, Moore—once again on his own—relied on his post as the state\u2019s top elected judicial official and
\n\tissued a memorandum \u201cto assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal court in Mobile.\u201d He
\n\treasoned that Granade\u2019s order had \u201ccreated a situation adversely affecting the administration of justice within the state,\u201d and that he, as the chief
\n\tadministrator of the Alabama courts, needed to bring order. More substantively, Moore reasoned that Granade\u2019s decision ran afoul of the state\u2019s
\n\tsovereignty to set its own priorities with respect to the institution of marriage—an area in which federal law virtually has no say—and that Alabama judges
\n\tcannot be bound by a lowly federal judge\u2019s views on same-sex marriage.<\/p>\n
\n\tMoore\u2019s legal standing has been debated by scholars and commentators, with some agreeing that a lone federal court decision is insufficient to trigger a
\n\tstate\u2019s compliance in a dispute where the constitutionality of a statute is a stake. But Moore didn\u2019t limit himself to legal arguments. In a letter
\n\taccompanying his memorandum to state probate judges—urgently titled \u201cFederal Intrusion Into State Sovereignty\u201d—he again appealed to the greater authority
\n\tof God in establishing the \u201csacred relation\u201d of marriage, as divined from stray passages of old judicial precedents, none more recent than 1908. Tellingly,
\n\the also quoted key passages from the Alabama constitution that Granade had voided, and again complained that \u201clower federal courts\u201d lack \u201clegitimate
\n\tauthority to compel state courts to redefine marriage to include persons of the same sex.\u201d He made clear who does: \u201cOnly the Supreme Court of the United
\n\tStates can be the final arbiter of constitutional disputes between the states and federal courts.\u201d <\/p>\n
And the Supreme Court did have its say, but not on Moore\u2019s terms, as he was never a party to the original lawsuit. With legal confusion looming for
\n\tsame-sex couples across the state—Granade had set a February 9 deadline for her ruling to go into effect—the court instead ruled on a request by Alabama
\n\tAttorney General Luther Strange, who had slightly more pragmatic reasons to implore a stop to same-sex weddings. Since the Supreme Court had already agreed
\n\tto rule on the constitutionality of same-sex marriage by June, there was no need to disrupt the status quo in Alabama. In other words, why not wait it out
\n\tuntil the Court issues a final ruling that applies to the whole country.2<\/p>\n
\n\tThe Supreme Court didn\u2019t buy it: A majority of justices refused to block Judge Granade\u2019s ruling. Same-sex marriage was coming to Alabama on February 9. The
\n\trefusal did not come without opposition. In a blistering dissent, Justice Clarence Thomas, one of the Court\u2019s conservative stalwarts and the justice in
\n\tcharge of emergency requests from Alabama, wrote that the rebuff \u201crepresents yet another example of this Court\u2019s increasingly cavalier attitude toward the
\n\tstates.\u201d He blasted his colleagues for not being consistent in selecting which same-sex marriage decisions to block, noting two prior occasions during
\n\twhich the Court had done just that, in cases presenting circumstances not unlike Alabama\u2019s. \u201cThose decisions reflected the appropriate respect we owe to
\n\tstates as sovereigns and to the people of those states who approved those laws,\u201d Thomas wrote.<\/p>\n
But Thomas didn\u2019t stop there. He agreed with the Alabama attorney general that preserving \u201cthe status quo\u201d is an important interest, especially in light of
\n\tUnited States v. Windsor—the case that in 2013 ruled unconstitutional the federal Defense of Marriage Act. That decision was only binding on the federal
\n\tgovernment, but in its wake, dozens of federal judges relied on it to invalidate same-sex marriage bans across the country. Thomas suggested that the
\n\tCourt\u2019s reluctance to intervene in Alabama hinted at the inevitability of same-sex marriage nationwide: \u201cThis acquiescence may well be seen as a signal of
\n\tthe Court\u2019s intended resolution of that question.\u201d He closed his rejoinder by stating that he \u201cwould have shown the people of Alabama the respect they
\n\tdeserve and preserved the status quo while the Court resolves this important constitutional question.\u201d<\/p>\n
\n\tIt hasn\u2019t been a smooth road since. After some confusion among state probate judges about whether to accept the legality of same-sex marriage in the state,
\n\tthe Alabama Supreme Court stepped in and issued a stunning 134-page opinion in early March, ordering them not to issue marriage licenses to same-sex
\n\tcouples. (Moore\u2019s prior pronouncements had only been advisory.) More stunning still, the court called the Supreme Court\u2019s Windsor decision a \u201clegal proxy
\n\tfor invalidating laws that federal judges do not like\u201d—a direct affront to Judge Granade, but also to the Supreme Court, which is poised to rule
\n\tdefinitively on the constitutionality of gay marriage. Moore has gone on to say that a national win for same-sex couples would be one of the Supreme
\n\tCourt\u2019s \u201cgreatest mistakes\u201d—right along with decisions affirming slavery, racial segregation, and abortion rights. <\/p>\n
For all the big rhetoric, there might be a kernel of truth to what Moore is saying—the bigger picture of an otherwise chaotic controversy. If there\u2019s a
\n\tlesson Alabama\u2019s defiance has left us, it\u2019s that there is a real possibility that the Supreme Court could make a huge mistake on gay marriage. And the
\n\tmistake has nothing to do with whether the Court will rule same-sex couples have a constitutional right to marry (that seems inevitable), but what path it
\n\twill take to reach that result. Scholars have identified at least four routes the Court could take. <\/p>\n
The route chosen is important because the Supreme Court, despite its prior edicts on the rights of gays and lesbians, has been extremely cautious in those
\n\trulings, almost to a fault. Consider Windsor, the case the Alabama Supreme Court lambasted. In that decision Justice Anthony Kennedy—and the author of all
\n\tprior gay-rights opinions—had really nice things to say about the dignity of same-sex couples, and chastised the United States government for enforcing a
\n\tlaw, the now-void Defense of Marriage Act, whose \u201cprincipal purpose is to impose inequality.\u201d <\/p>\n
\n\tAll well and good, but there was something else hidden in Windsor that is oddly reminiscent of Alabama and its renegade top judge. While asserting the
\n\tdignity of same-sex couples, the Supreme Court also threw a major bone to the states—in this case, the state of New York, which had legalized gay marriage
\n\tand thus stood in conflict with the federal government. In various sections of Windsor the Court reaffirmed time and again that the states retain autonomy
\n\tto regulate marriage, that \u201ceach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.\u201d
\n\tThat sounds a lot like Moore\u2019s legal reasoning for refusing to comply with federal law.<\/p>\n
Contrast that question with Justice Thomas\u2019 stinging words for his colleagues in his February dissent. How do you rule for a national constitutional right
\n\tto marriage for gays and lesbians, while acknowledging your respect for the states\u2019 democratic choices? What\u2019s more valuable, the rights of the LGBT
\n\tcommunity, or state sovereignty in the realm of family matters? <\/p>\n
This battle between federalism and individual rights is as old as the Constitution itself. And in a tortured effort to preserve that tension, it is not
\n\toutside the realm of possibility that the Supreme Court, once again, will bend over backwards to issue a decision that is as conclusive as it is
\n\tpolarizing: a ruling that recognizes a right to marriage equality across the country, while leaving the states and people like Roy Moore room for future
\n\trebellions. <\/p>\n
\n\tAnd what might those rebellions look like? Look no further than the wave of religious-freedom bills making headlines in Indiana and Arkansas. Lawmakers and
\n\tgovernors insist that the only purpose animating those legislative efforts is the protection of religious liberty for state citizens. But public outcry
\n\tfrom the LGBT community and even corporate giants suggests otherwise: that the freedom these bills promote is also the freedom to discriminate against gays
\n\tand lesbians, newly emboldened by the sweep of court rulings invalidating same-sex marriage bans. Now that the Supreme Court is gearing up to have the
\n\tfinal say, expect legislatures to keep a close eye on what exactly the Court will say. Because those words will determine whether run-ins between states\u2019
\n\trights and gay rights are only limited to Alabama, or they\u2019re simply a feature—not a bug—that America will have to live with for years to come. <\/p>\n","protected":false},"excerpt":{"rendered":"
Roy Moore, the chief justice of the Alabama Supreme Court, has had run-ins with the federal judiciary before, but never with the Supreme Court of the United States. That changed in February, when the High Court, without explanation, refused to halt the wave of same-sex weddings about to overtake Alabama after a federal judge and<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-6315","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6315","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6315"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6315\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6315"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6315"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6315"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}