Did Supreme Court justices tip their hand in Alabama gay marriage case?

On Monday, Alabama became the 37th state to allow same-sex marriage, after the Supreme Court declined to issue a stay. The high court action provides perhaps the best indication yet that a majority of justices are preparing to uphold gay marriage.

Brynn Anderson/AP
Shante Wolfe, left, and Tori Sisson, wait for their marriage license to be processed before becoming the first couple to file their marriage license in Alabama's Montgomery County, Monday. Alabama is the 37th state to allow gays and lesbians to wed.

The US Supreme Court on Monday declined to issue a stay of a federal judge’s ruling invalidating Alabama’s definition of marriage as a union of one man and one woman, and requiring the state to begin allowing same-sex marriages Monday.

Alabama thus becomes the 37th state where gay men and lesbians are free to marry.

Two justices, Clarence Thomas and Antonin Scalia, dissented from the order. They said they would have halted the marriages until the Supreme Court issues its decision in four consolidated same-sex marriage cases, which are expected to be argued in April and decided by late June.

The high court action in the Alabama case provides perhaps the best indication yet that a majority of justices are preparing to uphold same-sex marriage as constitutionally required in every state.

In his dissent, Justice Thomas suggested as such. “This acquiescence may well be seen as a signal of the Court’s intended resolution of [the same-sex marriage] question,” he wrote.

Some legal analysts have opined that the justices would not allow same-sex marriages to begin in Alabama if they were inclined to later uphold a right of states to ban such marriages.

The seven justices who declined the stay request did not offer an explanation.

Last week, Alabama Attorney General Luther Strange had asked the high court to halt the marriages at least until the justices decide the same-sex marriage cases pending at the Supreme Court.

Earlier, the federal appeals court in Atlanta refused to issue a stay.

In December, the 11th US Circuit Court of Appeals declined to block a federal judge’s ruling in Florida striking down that state’s ban on same-sex marriages. The Supreme Court also declined to issue a stay in the Florida case.

Same-sex marriages began in Florida last month.

The action in Alabama was greeted with celebration from same-sex couples, their friends and family members. But it was also met with defiance, particularly by the chief justice of the Alabama Supreme Court, Roy Moore, a vocal opponent of gay rights.

On Sunday night, Chief Justice Moore issued an order directing all probate judges to refuse to issue marriage licenses.

Despite Moore’s order, couples received licenses Monday as required by the federal ruling, according to the Associated Press. The added stamp of approval from the US Supreme Court in declining to issue a stay also undercut Moore’s position.

Although same-sex marriages are taking place in Alabama and 36 other states, marriage laws across the country are in turmoil given the resulting patchwork of conflicting rulings, statutes, and state constitutional amendments on the subject.

Marriage laws have traditionally been within the authority of the states. But the states have never enjoyed total control over who can and can’t marry.

For example, in 1967, the Supreme Court invalidated a Virginia law that banned interracial marriages in the case Loving v. Virginia.

In that case, the high court said the state statute violated rights protected by the US Constitution. Such rights are enforceable in all 50 states.

In the cases now pending at the high court, the justices have agreed to decide whether the US Constitution’s 14th Amendment requires states to recognize unions between two people of the same sex as a marriage under state law.

If the answer is yes, that decision will invalidate every state-enacted statute and voter-approved constitutional amendment defining marriage as between one man and one woman.

If the answer is no, it would immediately raise questions about the validity of thousands of marriages already performed in various states by federal judges acting prior to clear guidance from the Supreme Court.

In his dissent, Thomas criticized the high court for its “increasingly cavalier attitude toward the states.” He said the federal courts owe “appropriate respect” to the states as sovereigns “and to the people of those states who approved those laws.”

“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,” he said.

Thomas also alluded to the Court’s refusal last fall to take up a same-sex marriage case, an action that effectively invalidated a string of state laws and constitutional amendments upholding a traditional definition of marriage.

He said the court acted “without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them.”

“I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question,” Thomas wrote.

In a statement, the same-sex couples who filed suit to overturn the Alabama marriage laws expressed gratitude Monday.

“We are thrilled that same-sex couples are now legally treated as equal citizens of this state,” said Cari Searcy, who filed the suit with her wife, Kimberly McKeand.

The couple were married in California in 2008 and have one son. The case arose when Ms. Searcy tried to adopt the boy, but Alabama would not recognize their California marriage as valid.

“The only thing we have wanted from the beginning is to see a day when same-sex couples across Alabama no longer live in fear of the harms caused by the lack of equal protections.” She added: “We are honored to be part of this historic moment.”

James Strawser filed suit with his partner, John Humphrey.

“We got involved in this case because John was not allowed to be involved with my medical care when I was in the hospital,” Mr. Strawser said. “Being able to get married will give us so much peace of mind.”

“All we want is to be treated like any other married couple, and we are so happy that is going to be possible today,” Strawser said.

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