The on-again, off-again march of gay marriage into Alabama has been blocked anew: On Tuesday, the state’s highest court, in essence, reversed a federal appeals court ruling mandating that county probate judges start handing out marriage licenses to gay couples who file the necessary paperwork.
The stunning sight of a state court squaring off like a hockey enforcer with the federal judiciary is par for the course in Alabama, where states rights rule and which gave America the “stand in the school house door” by then Gov. George Wallace, who blocked the entrance of the University of Alabama, refusing to allow black students an equal right to an education until the arrival of federal troops.
As evidenced by the kind of legal tug-of-war over gay marriage that hasn’t been seen since that era, Alabama has found a unique place in the national debate over equal rights, one seen alternately by supporters as a last stand on behalf of America’s Christian founding beliefs and by critics as a regressive bulwark of the lost Confederacy.
At least in some respects, rebuffing federal interference in state affairs, historians say, is as important to officials as making sure marriage rights are kept within perceived Biblical bounds.
“What I have often been struck by is a sense that when outsiders impose any kind of mandate, Southerners tend to dig in their heels,” says Lisa Lindquist-Dorr, a professor of Southern history at the University of Alabama in Tuscaloosa. For example, in the early 1900s, “there were suffrage groups in the South, but when it appeared that suffrage was going to be won by federal amendment, some of them … lobbied against the amendment because they could not stand the thought of federal action versus state action. That’s how deep resistance to authority runs.”
Called “highly unusual” even by a judge who voted in the affirmative, Tuesday’s ruling came from a case brought by several Christian groups that argued the US Constitution does not trump the duty of judges to administer state law, which in Alabama defines marriage as a state-sanctioned union between a man and a woman.
But it’s that designation, embodied in the Alabama constitution, that US District Judge Callie Granade of Mobile struck down as unconstitutional on Feb. 9, one of a series of federal and state rulings that have felled gay marriage bans across the US. The federal and state court skirmishes, including the one in Alabama, are likely to be settled by a Supreme Court decision expected later this year on whether gays and lesbians can get married nationwide.
While some Alabama gay couples were married after the Feb. 9 ruling, Supreme Court Chief Justice Roy Moore, the state’s most outspoken opponent of gay marriage, quickly told probate judges they didn’t have to abide by the federal ruling, which threw the process into confusion, with roughly one-third of probate judges voluntarily issuing licenses to same-sex couples and two-thirds refusing to do so.
As to whether marriage licenses issued to homosexual couples before Tuesday’s ruling are legal, the court did not say, though it used the term “purported” to describe them. Probate judges are pondering their next steps, but some jurisdictions, including Mobile County on the Gulf Coast, have said they won’t issue any more marriage licenses to same-sex couples until the legalities are resolved. Confusion, for the moment, continues to reign.
To be sure, Judge Moore’s insistent Christian dogma, including his failed fight against the federal judiciary to display a Ten Commandments monument at the capitol, has made him both a revered and reviled national figure who has come to embody Alabama’s passionate stand against the ability of some Americans to get married. So as to not sully the ruling, Moore recused himself from Tuesday’s 7-to-1 vote.
“The reason why federal courts overrule state courts is that rights in America are inalienable rights that are not subject to majority rule, for good reason,” says Ms. Lindquist-Dorr. The fact is, she adds, “[P]eople who have rights don’t like to extend them to people who don’t have rights. They like to shut that door behind them.”
The state supreme court said that “state courts may interpret the United States Constitution independently from, and even contrary to, federal courts” until the point where the nation’s highest court rules on the issue.
“Throughout the entirety of its history, Alabama has chosen the traditional definition of marriage,” the court added in its 138-page opinion. “That fact does not change simply because the new definition of marriage has gained ascendancy in certain quarters of the country, even if one of those quarters is the federal judiciary.”
Certainly, there is wiggle room in the interpretation of federal law where, despite the supremacy clause, state courts can arguably override lower federal courts in the absence of a US Supreme Court ruling.
Still, the ruling makes clear that "[t]his is no longer a case about just marriage equality; it is a case about the power to say what the law is," writes Mark Joseph Stern, on Slate. "The Alabama Supreme Court wants to claim that power for itself. And it's daring the US Supreme Court to call its bluff."
Since Alabama judges are popularly elected, it’s likely the state Supreme Court has wide-ranging support for its decision to brush off the federal bench. But it’s also true that many Alabamians see the ruling as vexing because it perpetuates stereotypes that in turn hurt economic prospects in a state with stark poverty rates and limited opportunity.
Moreover, torch-bearing political stances have backfired on the state in the past.
After Alabama followed Arizona’s lead in 2011 to force immigrants and foreign visitors to show their immigration papers, a German executive with Mercedes-Benz, which has a plant in Alabama, was arrested in Tuscaloosa during a visit, for failure to show papers. US Rep. Luis Gutierrez, (D) of Illinois, at the time said, “I mean, do you want the jobs and the commerce or do you want the stain that comes with discriminatory legislation?” (Federal lawsuits and legislative revisions ultimately gutted the tough immigration measure.)
Nevertheless, some opponents of gay marriage bucked attempts by critics to draw parallels between the court’s view on gay marriage and the state’s history of segregation.
“Many writers in support of gay marriage have wanted to compare the removal of the ban on same-sex marriage to the abolishment of slavery,” wrote Elmore County Probate Judge John Enslen on Wednesday. “There is one stark difference they ignore. Abolishing slavery … was on the right side of morality. Establishing homosexual marriage is on the wrong side of morality … Unlike skin color, homosexuality is not an immutable physical character trait disconnected with our moral agency.”
Thirty-six states besides Alabama now have legal gay marriage, and 60 separate court decisions have fallen mainly in favor of gay marriage. That pace and the looming Supreme Court look at gay marriage makes the Alabama Supreme Court’s stand, to some, seem something like a cultural primal scream expressed through the courts.
As a result, “I'm afraid Alabama will once again look obstinate and backwards in the eyes of the world,” writes commenter Reuben Kolb, on AL.com. “Bless our hearts.”