In defiant ruling, Alabama Supreme Court stops same-sex marriage in state
Angela Channell, right, and Dawn Hicks, left, displayed their marriage on Feb. 13. Channell and Hicks were the first couple to apply for and receive a marriage license from Tuscaloosa County, Ala., for a same sex marriage. (AP Photo/The Tuscaloosa News, Robert Sutton)
The Alabama Supreme Court ordered a halt Tuesday
to same-sex marriages in the state despite a U.S. Supreme Court order
allowing them to proceed. The ruling capped a wild month of confusion
and resistance in Alabama following a January decision by a U.S.
district court invalidating Alabama’s ban on gay marriage.
The Alabama justices were defiant. “As it has done for approximately two centuries,” the court said,
“Alabama law allows for ‘marriage’ between only one man and one woman.”
Alabama judges have a duty “not to issue any marriage license contrary
to this law. Nothing in the United States Constitution alters or
overrides this duty.”
The
resistance in Alabama, where states’ rights has always been sacred writ
and state supreme court justices are elected rather than appointed, has
been compared by many to that state’s resistance to school
desegregation orders in the 1963, when Gov. George Wallace (D) stood in
the doorway of the University of Alabama to prevent the court-ordered
enrollment of black students.
“The
ruling of the Alabama Supreme Court offers the most forceful and
clearly articulated rebuttal to date of the imaginative arguments for
same-sex ‘marriage’ employed by federal courts,” said a statement from the Liberty Counsel, which challenged the lower court ruling.
What
happens next is unclear. Presumably someone will go back to the federal
courts to overturn the ruling. But short of a ruling on gay marriage by
the nation’s highest court, which isn’t expected for months, the
standoff seems likely to continue. The Alabama court suggested that it
would be bound by the U.S. Supreme Court but nothing lower than that.
Indeed,
the state’s highest court declared itself equally empowered as the
lower federal courts to decide whether Alabama’s ban on same-sex
marriage violates the Constitution — stating unequivocally that it does
not in what amounted to a broadside against the trend of courts
invalidating same-sex marriage bans.
It
accused other courts of employing “sleight of hand” to confer
“fundamental-rights status on a concept of marriage divorced from its
traditional understanding.”
“Throughout the entirety of its history, Alabama has chosen the traditional definition of marriage,” the court said in a per curiam opinion,
issued in the name of the court rather than a specific justice. “… 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.”
“Marriage
has always been between members of the opposite sex,” it said. “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. … In short, government has an obvious interest in offspring
and the consequences that flow from the creation.”
That
reasoning has been rejected by roughly 60 state and federal courts
around the country in the past few years. But 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 has weighed in.
That should happen in a few months. In the meantime, the U.S. Supreme Court on Feb. 9 refused to stay the
Alabama decision allowing same-sex marriage until it does rule, an
action that was taken by court dissenter Justice Clarence Thomas as a
signal on how the high court will eventually resolve the issue.
Many
thought the U.S. Supreme Court’s refusal to stay the lower court
decision invalidating the ban meant that Alabama had to, or ought to,
comply and issue marriage licenses. But that was not to be. About a
third of the state’s 67 counties began issuing licenses, but the other
two-thirds refused, citing a letter by Alabama’s firebrand chief
justice Roy Moore telling them to ignore the federal court ruling. (Moore did not take part in yesterday’s ruling.)
Six
of the court’s nine justices concurred in yesterday’s opinion. A
seventh concurred in part and there was a single dissent, based not on
constitutional issues but a contention that the court did not have
jurisdiction.
David
Kennedy, one of the lawyers who represented the Mobile couple who
successfully challenged Alabama’s same-sex marriage ban, told Alabama.com last
night that he does not think the state supreme court ruling would
survive a challenge in federal court. “I don’t really think that they
can do that. I’m not surprised, but I’m somewhat appalled,” he said.
Kennedy said he believes that probate judges act “at their own peril” if
they choose to obey the state court.
“Whenever state law conflicts with federal law, federal law wins,” he said.
“The
Alabama state Supreme Court does not have the authority to
interfere with a federal court order,” Human Rights Campaign legal
director Sarah Warbelow told Alabama.com. “This order is outrageous and
baffling, and no amount of legalese can hide the bare animus that forms
the foundation of this extralegal ruling.”
It’s
not that simple, however, according to scholars. While federal law and
federal rulings ultimately trump state law under the constitution’s
Supremacy Clause, a federal district court order to a particular probate
judge — or marriage-license issuer — does not necessarily apply to anyone else in the absence of a specific order.
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