Alabama Does A One-Eighty On Gay Marriage, Again

On Tuesday, seven members of the all-Republican Alabama state supreme court halted gay marriage licenses on the grounds that allowing same-sex marriages violated state law. The court’s decision comes only weeks after a federal district court judge ruled Alabama’s ban on same-sex marriage unconstitutional on the grounds that such laws unfairly discriminate against LGBTQ couples, following the precedent of more than 60 state and federal courts in the past few years. While Alabama’s probate judges — who are legally responsible for issuing marriage licenses — might have legal ground for choosing to enforce the state ban, the state supreme court’s opinion is more political maneuver than constitutional treatise.

"As it has done for approximately two centuries, Alabama law allows for 'marriage' between only one man and one woman," the unsigned ruling said. "Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law … Nothing in the United States Constitution alters or overrides this duty."

In response to the state court's order, Mobile County is now refusing to issue any marriage licenses, for heterosexual and homosexual couples alike.

The judicial confrontation in Alabama all began in January when U.S. District Judge Callie Granade of Mobile, Alabama, ruled that the state’s statute outlawing gay marriage violated the Constitution’s guarantee of equal protection under the law and ordered relief for the LGBTQ couple that brought the challenge. As gay rights advocates celebrated the tidal shift in one of the South’s most conservative strongholds, Chief Justice Roy Moore of the state supreme court made headlines by ordering the probate judges to ignore Granade’s decision and instead continue to deny marriage licenses to same-sex couples.

One probate judge, Don Davis, then ran into trouble when a LGBTQ couple he refused a license to brought their case before Granade. Not surprisingly, she again ruled that the same-sex marriage ban violated the Constitution and ordered Davis to issue a marriage license.

Meanwhile, conservative activists sought to overturn Granade’s decision by appealing the case to the U.S. Supreme Court. When the nation’s highest court refused to take the appeal on Feb. 9 and let the district court’s stance on gay marriage stand, many legal advocates took the refusal as a sign that the justices were likely to stand with the LGBTQ community when they addressed the constitutionality of same-sex marriage bans this summer. It is only a matter of time until gay marriage is legal everywhere. Or so the thinking goes.

But for the Republican-packed supreme court in Alabama, the struggle against gay marriage was far from over. Rather than accept the federal court ruling or the more than 60 other court decisions that have found in favor of same-sex marriage, seven of the justices penned an unsigned 134-page rebuttal to the “[so called fad]” of gay marriage. (Moore recused himself from the decision, and the lone dissenter diverged from his colleagues on jurisdictional grounds rather than on constitutional ones.)

On the one hand, as constitutional scholar Vikram David Amar notes on Justia, the justices are correct that Granade’s order only applies directly to the couple that brought the legal challenge in the first place; probate judges statewide are thus not legally bound to issue same-sex marriage licenses. But refusing to do so could open the probate judge up to lawsuits from more LGBTQ individuals who feel their rights have been violated – suits that largely look to be successful, given the swing of federal precedent towards gay marriage.

What becomes clear from reading the state supreme court’s opinion, though, is that the justices are not simply trying to foreground a technical legal issue. Instead, with echoes of George Wallace’s rabid opposition to desegregation orders in the 1950s and '60s, the seven justices trumpeted states' rights and an adherence to tradition in the face of the meddling federal courts and their newfangled commitment to gay marriage.

State courts, the Alabama justices argued, did have jurisdiction to interpret questions of the federal Constitution:

Although decisions of state courts on federal questions are ultimately subject to review by the United States Supreme Court, as are decisions of federal courts, neither "coordinate" system reviews the decisions of the other. As a result, state courts may interpret the United States Constitution independently from, and even contrary to, federal courts.

And in Alabama, the opinion continued, we interpret marriage differently than these federal judges do:

Marriage has always been between members of the opposite sex. The obvious reason for this immutable characteristic is nature. Men and women complement each other biologically and socially. Perhaps even more obvious, the sexual union between men and women (often) produces children.

Of course in all this talk about preserving marriage and preventing social collapse, the Alabama supreme court commits a number of logical blunders: conflating sex with reproduction; portraying the “Leave It to Beaver” nuclear family as an essential and universal fact of social life rather than as a particular mode of social organization that has become normalized; and ignoring the ways in which the so-called “traditional” family unit has acted as a site of women’s oppression and exploitation for centuries, if not longer.

But that’s beside the point. After all, the justices — who are elected rather than appointed — scored political points with their base for the opinion. Conservative activists at the Liberty Council lauded the Alabama court’s opinion as “the most forceful and clearly articulated rebuttal to date of the imaginative arguments for same-sex 'marriage' employed by federal courts.”

Whether the state courts will ultimately win out in the contest with the federal judiciary on gay marriage is up to the Supreme Court. As Shannon Minter, legal director of the National Center for Lesbian Rights, put it:

It is deeply unfortunate that even as nationwide marriage equality is on the horizon, the Alabama supreme court is determined to be on the wrong side of history.

In the meantime, Alabama’s judges seem bent on creating as much chaos around the same-sex marriage licensing as possible.

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