Alabama First at Something

Sadly whenever Alabama is first at something (save perhaps in football) it is never for something good.

MooreVia al.com:  Alabama Supreme Court first in nation to defy federal court gay marriage order

The Alabama Supreme Court this week became the first state high court in the nation to challenge a federal court order allowing same-sex marriage, legal experts say.

[…]

“It certainly seems to be the most extreme example of a state court refusing to follow the orders of a federal court regarding marriage equality,” said Stratton Pollitzer, deputy director and co-founder of Equality Florida. “It looks pretty ridiculous to the rest of the country.”

For others, the Alabama Supreme Court’s order is a necessary step in defending states’ rights to determine the definition of marriage.

“Not only are we the first state to do that, our motto is ‘we dare defend our rights’,” Alabama Supreme Court Chief Justice Roy Moore said in an interview with AL.com.

“I can’t explain why more than 20 other states have bowed down to unlawful federal authority but Alabama is not one of them,” Moore said. “A federal judge has no authority to overturn a state constitutional amendment in the face of a state court’s opinion on the same matter.”

A few thoughts:

1.  Justice Moore clearly thinks some rights are worth defending, while others aren’t.  It is highly unfortunate that the right he wants to defend is to deny rights to some Alabama citizens.  Of course, this tends to be an Alabama tradition, unfortunately.

This leads into:

2.  It seems as if every time a state is asserting its rights that it is never to actually expand rights of citizens in that state.  ”States’ rights” has been deployed to defend slavery, Jim Crow, school segregation, and unequal voting rights.  It is now being deployed to defend treating homosexual couples differently from heterosexual couples.  I cannot, in fact, think of a case in which a “states’ rights” argument was used to protect the rights of the citizen of a given state from the federal government.

Anyone have any examples that I am missing?

The Alabama Supreme Court’s ruling here is going to be moot rather soon, as SCOTUS is going to rule on this matter one way or another quite soon.  I do wonder if Moore (and now his colleagues) are going to suffer any consequences for this rather remarkable flaunting of the supremacy clause of the US Constitution.

FILED UNDER: Law and the Courts, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Trumwill says:

    Guns.

  2. Hal_10000 says:

    I cannot, in fact, think of a case in which a “states’ rights” argument was used to protect the rights of the citizen of a given state from the federal government.

    Many states tried to use states rights to stop the federally mandated drinking age of 21. Unfortunately, the Court sided against them. The arguments for Colorado and Washington being allowed to legalize marijuana are based heavily on states rights, which the Supreme Court unfortunately trampled in Raich. Oregon’s assisted suicide law has turned on states rights. That’s just off the top of my head. If you want to go back in history, the Alien and Sedition Acts are opposed by states rights.

  3. Hal_10000 says:

    @Trumwill:

    Actually, no. Under the 14th Amendment, the States are all subject to the 2nd.

  4. HarvardLaw92 says:

    @Hal_10000:

    The states remain well within their constitutional authority to lower their drinking age if they so desire. The court simply ruled that the federal government can condition federal highway funding on state acceptance of attached conditions. In other words, if you want the money, you have to agree to the conditions which come with it, otherwise you’re free to do as you please. You just don’t get the money.

    Similarly, states are well within their authority to decriminalize the possession / production of marijuana AT THE STATE LEVEL. Raich simply held that the federal government was within its authority to criminalize it AT THE FEDERAL LEVEL by virtue of the commerce clause.

    Neither case impinged on “states rights” – which is something of a misnomer to begin with.

    This instance is different – Alabama is essentially asserting that the Supremacy Clause doesn’t exist, or that at a minimum it only applies with respect to decisions tendered by the Supreme Court. It’s a ridiculous argument, but one that comports nicely with the obstreperous nature of the South.

  5. Trumwill says:

    @Hal_10000: I was referring to attempts by some states (Montana I know of, but I think others) to allow the production and possession of guns banned by the federal government as long as they stay in the state.

  6. michael reynolds says:

    The essential error here was made way back in the 1860’s. That’s when the federal government should have taken over primary education in the rebel states. The states spent the next 150 years lying about the Civil War, rationalizing their foul and despicable crimes against humanity and creating a mythology of white victimization that endures today. We should have done what we did with the Nazis after 1945 – demand that the truth be taught in schools.

    It’s sort of the model for Fox News: create an alternate reality, lie shamelessly, brainwash enough willing fools and you can form a base among the deluded.

  7. michael reynolds says:

    @Trumwill:

    Because guns are very disciplined that way: they never cross state borders.

  8. Trumwill says:

    Any definition of state rights that does not include states wishing to supercede federal laws with their own laws, such as with marijuana (or guns), is an excessively narrow definition. If we don’t actually count examples where states try to expand personal freedom, then it’s true there are no instances where that is the case (because they don’t count).

  9. @Trumwill: I concur that, say, marijuana laws are examples of state level enhancements of freedom over the problematic federal drug laws.

    I will, however, note that in terms of kinds I am having a hard time placing the right to buy a specific type of weapon, or even the right to use a specific substance, in the same category as the policy areas I noted in the post.

    Gun laws come the closest, only because they are enumerated in the BoRs. Still, I am not sure the example of Montana seeking to sell one kind of banned gun as being an especially good counter example to the list I gave in the post,

  10. Trumwill says:

    @michael reynolds: The merits of their case are neither here nor there. The issue is that the argument was made.

  11. HarvardLaw92 says:

    @Trumwill:

    Any definition of state rights that does not include states wishing to supercede federal laws with their own laws

    Um, Supremacy Clause?

    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

    In conjunction with the Necessary and Proper clause, that’s the ballgame.

    You are asserting a version of states rights which has never existed. States may be independent sovereigns, but they are not – nor have they ever been – co-equal sovereigns. They’re subservient by design.

  12. HarvardLaw92 says:

    @Trumwill:

    The argument was intended to be red meat for the base. It never had any chance of becoming active, valid law.

    Now, I’ll admit that Montana is somewhat of a hot bed of crackpottery, but there are more than a few lawyers in the Montana legislature. Even a crackpot understands why and how Wickard v. Filburn nullifies the argument before it even gets out of the gate.

  13. Trumwill says:

    @HarvardLaw92: You’re commenting on the merits of the arguments. I’m commenting on the existence of the arguments, and whether or not they qualify as making a “state rights” argument.

    Roy Moore’s argument here is utterly ridiculous. And it will lose, ultimately. But it’s still a state rights argument. Arguing that states should be able to allow gun or substance ownership notwithstanding federal law are state rights argument, regardless of their actual merit.

  14. PD Shaw says:

    The federal REAL ID Act. A number of states passed laws opposing it and declaring it unconstitutional.

  15. HarvardLaw92 says:

    @Hal_10000:

    Under the 14th Amendment, the States are all subject to the 2nd.

    Accurate.

    Under the Supremacy Clause, they are also bound by any and all federal gun control laws, to the extent that their own gun control laws may be no more permissive than the federal ones.

    The absolute, overarching bête noire of the gun lovers segment / NRA is one consistent and comprehensive federal gun control policy. That’s the thing that keeps them awake at night – and the reason that they expend so much time and money lobbying Congress to keep it from ever becoming reality.

  16. HarvardLaw92 says:

    @PD Shaw:

    More showboating by the states. FRIDA only sets standards with regard to what format state IDs must conform to in order to be accepted as valid identification by the federal government for federal purposes.

    It does not, anywhere, attempt to compel states to adopt the federal format. There is a decided difference between “YOU MUST DO THIS” and “you’re free not to do this, but if you decline, we’re not going to allow your citizens onto a plane if they try to use the non-compliant DL you gave them as identification at the gate”.

    In the wake of South Dakota v. Dole, states rights are a dead issue. They essentially no longer exist. No state can survive without federal funding, and SCOTUS has been more than clear that the federal government can use the withholding of funding as a motivator to comply with federal laws.

  17. JohnMcC says:

    Lots of the argumentation about fugitive slaves was based on state’s rights. I don’t think I’ll spend the time necessary to look up the course of that issue but the basic point made by anti-slavery advocates at the time was that if a given state banned the possession of slaves, an escaped slave was effectively free once they were on that state’s soil. George Washington and Thomas Jefferson (to my specific knowledge) very carefully vetted their slaves for any tendency to flee before taking them to Boston but still had several of them flee. Before the passage of the Fugitive Slave Act there was not too much they could do when that happened.

  18. @JohnMcC: That would be an example of what I am looking for.

  19. Stonetools says:

    @HarvardLaw92:

    In the wake of South Dakota v. Dole, states rights are a dead issue. They essentially no longer exist. No state can survive without federal funding, and SCOTUS has been more than clear that the federal government can use the withholding of funding as a motivator to comply with federal laws.

    I think Roberts and Kennedy plan to reverse this. That’s because the states have been oh so wonderful at protecting people’s rights, I guess.

  20. OzarkHillbilly says:

    States rights, unicorns, and pots of gold at the end of rainbows, 3 things that don’t exist and never have. You can’t find “states rights” in the constitution because they aren’t there. Citizens have rights, states have powers.

  21. Console says:

    There is no such thing as state’s rights. Political bodies have powers, not rights. “State’s Rights” is fundamentally an oxymoron. The fact that the right has been able to coopt an authoritarian stance (the idea that states don’t just have the ability to make oppressive laws but the right to) into a one that sounds like they are standing stalwart against encroachments of liberty is amazing.

    It’s a position that eventually loses when it buts up against real violations of liberty, but it’s ability to bind small government conservatives and libertarians with right wing authoritarians is quite impressive.

    Edit: Ozark beat me to it

  22. Hal_10000 says:

    State’s right may indeed be a misnomer. I’m more inclined to the term “federalism” myself in which certain areas of law are reserved to the states, rather than the Feds (subject to the restrictions of the Constitution, per the 14th Amendment). And I’m inclined to take a broad view of state’s discretion in a lot of these matters.

    There is an argument to be made that marriage is best left to the states to decide. I disagree with that argument and think a legal regime where you can be married in one state and not in another is a potential legal nightmare. But it’s worth noting that the support of gay marriage was built not a federal level but the state level, with several states slowly allowing it and then others following. That’s the whole laboratories of democracy thing for you.

  23. M. Bouffant says:

    State “rights” are as big & similar a crock as corporate “personhood”.

    And how ironic that the self-described small-gov’t. types want to give “states” (i.e., governments) “rights” that appear to supersede actual individual rights.

  24. Brett says:

    One good example is environmental regulation. Courts have often struck down state environmental regulations through the preemption doctrine, which is linked to the supremacy clause. However, I think this tend to be framed more in terms of generic federalism than “states’ rights.”

  25. @Brett:

    However, I think this tend to be framed more in terms of generic federalism than “states’ rights.”

    Which is an important distinction.

  26. Paludicola says:

    “Can we forget for whom we are forming a government? Is it for men, or for the imaginary beings called States?”

    ~James Wilson

  27. HarvardLaw92 says:

    @Hal_10000:

    But it’s worth noting that the support of gay marriage was built not a federal level but the state level, with several states slowly allowing it and then others following.

    Not really seeing it that way. At the time that Windsor came down, June of 2013, some 9 states and DC had same sex marriage in force. 3 states recognized marriages performed elsewhere, but didn’t permit them in their states. Only 6 of those came about as the result of legislative / electoral action.

    Between then and now, we’ve upped that number to 37, entirely as the result of federal judicial mandate. Few, if any, of those states were happy about the idea. In fact, most of them were quite recalcitrant.

    I’d feel pretty comfortable stating that, if we had left it up to the states to decide, we’d probably have achieved nationwide SSM policy somewhere around 2050.

  28. Tillman says:

    @HarvardLaw92:

    South Dakota v. Dole

    Learn something new every day!

  29. de stijl says:

    @HarvardLaw92:

    I’d feel pretty comfortable stating that, if we had left it up to the states to decide, we’d probably have achieved nationwide SSM policy somewhere around 2050.

    In your speculation are you assuming that the 14th Amendment exists?

    If the 14th did not exist, I could see your prediction. If civil rights were solely decided by plebiscite, the Civil Rights Act and the Voting Rights Act and miscegenation laws would be contentious to this day. SSM would be a dim maybe.

    But if you assume that the 14th exists, then some court somewhere would apply it and then the dam breaks. If we have an America with a CRA and a Constitutional prohibition on laws banning mixed race marriage, we’re going to see SSM sooner or later.

    The 14th amendment changed everything. But it took awhile. It took a long god-damned time in all truth and we are all shamed by that. It took a hundred years for one change and then another one forty years thereafter, but eventually it changed America to the core.

    The big take away from your comment is that we should never, ever allow civil rights to be decided by a popular vote. That way lies an America I hope to never see again.

    Excepting the Bill of Rights, the 14th Amendment may be the most important piece of legislation in our history.

  30. edmondo says:

    When this douchebag was sworn in, didn’t he promise to defend “the laws of the United States and the state of Alabama”? If so, he seems to be aching to be replaced on the bench for malfeasance.

  31. humanoid.panda says:

    @HarvardLaw92:

    No state can survive without federal funding, and SCOTUS has been more than clear that the federal government can use the withholding of funding as a motivator to comply with federal laws.

    But NFIB vs. Sevellius indicates SCOTUS might well retreat towards states’ rights on that front..

  32. Tyrell says:

    With the heritage of the incomparable Coach Paul Bryant, Alabama can’t be all that bad.
    “Roll Tide !!”

  33. HarvardLaw92 says:

    @humanoid.panda:

    Not really. PPACA was regarded as being coercive with regard to Medicaid expansion – in other words, expand Medicaid or lose ALL of your Medicaid funding. I agree with that position – the provision was coercive.

    In contrast, the National Minimum Drinking Age Act only imposed a loss of 10% of a state’s federal highway funding.

    It’s difficult to argue coercion when you’re still getting 90% of what you have been allocated – even given the reality that a loss of even 10% of that funding would be devastating to state budgets.

    I suspect that, had the statute mandated a loss of, say, 10% or15% of Medicaid funding, it would have been left intact by SCOTUS. They didn’t impugn South Dakota v. Dole in Sebelius. They directly applied the tests it established. If anything, in an odd way they signaled an affirmation of SD v. Dole.

  34. HarvardLaw92 says:

    @edmondo:

    Ethics complaints have already been submitted regarding Moore.

  35. HarvardLaw92 says:

    @de stijl:

    Right – it was a hypothetical that presumed the 14th Amendment wasn’t a part of the legal calculus.

    The path from Windsor to federal district and circuit appeals courts overturning state level bans has only one hop in between – the 14th Amendment. Its existence rendered these state level bans dead in the water from the second that Windsor was handed down.

  36. States don’t have rights, they have powers; only individuals have rights.

  37. Tony W says:

    I wonder if Moore can be prosecuted under Federal law for obstructing civil rights? Would a gay couple in Alabama have standing to sue?

    And hey, for once Mississippi is saying “Thank God for Alabama”!

  38. Grewgills says:

    @HarvardLaw92:

    Between then and now, we’ve upped that number to 37, entirely as the result of federal judicial mandate.

    Hawai’i did it legislatively since then. I believe another couple of states did as well, so that statement is incorrect. Your broader point is correct though.

  39. Barry says:

    @Trumwill: “Guns.”

    That’s a sorta – it’s really for white people to shoot others, especially nonwhites.

    And note just how many ‘open carry’ white people have been killed by police, despite thousands of opportunities for a lethal misunderstanding, and despite a couple of murders of police officers by white right-wingers.

    That would be 0.

  40. Barry says:

    @OzarkHillbilly: “Citizens have rights, states have powers.”

    Seconding this. In general the people pushing ‘states’ rights’ whom James discussed are people who want more power for themselves, pure and simple. They are almost always happy with federal laws which do what they wish, and are always happy to override local laws which do things which they don’t like.

  41. Barry says:

    @Hal_10000: “There is an argument to be made that marriage is best left to the states to decide. I disagree with that argument and think a legal regime where you can be married in one state and not in another is a potential legal nightmare. ”

    Your second sentence is an excellent argument against your first.

  42. Barry says:

    @HarvardLaw92: “No state can survive without federal funding, and SCOTUS has been more than clear that the federal government can use the withholding of funding as a motivator to comply with federal laws.”

    Which is an interesting view; basically a subsidy is an entitlement.