Alabama, Where The Constitution Apparently Doesn’t Apply

Roy Moore and six of his fellow Judges on the Alabama Supreme Court have a rather bizarre view of Constitutional Law.

constitution-preamble-gavel

It’s been more than a month now since a Federal District Court Judge in Alabama ruled that state’s ban against same-sex marriage to be unconstitutional, but that doesn’t mean that it has been a smooth road for marriage equality in the “Heart of Dixie.” Almost immediately after the ruling came down, Alabama Supreme Court Chief Justice Roy Moore, who previously made his name over a clash with several Federal Courts over a Ten Commandments monument he had placed on Courthouse grounds, ordered Alabama’s Probate Judges, who issue marriage licenses in the state, that they should not issue marriage licenses regardless of what the Federal Court had said. After both the 11th Circuit and the Supreme Court declined to stay the District Court Judges ruling, several Probate Judges decided to comply with the ruling and issue marriage licenses, but many more didn’t This led attorneys involved in the case to bring at least one of those Probate Judges before the District Judge via motion, which led to yet another ruling from the District Court directing the Probate Judges to issue marriage licenses. Now, even with that ruling still pending and not having been stayed, the Alabama Supreme Court is intervening into the matter and essentially arguing that the Constitution doesn’t apply in the State Of Alabama:

The Alabama Supreme Court on Tuesday night ordered probate judges around the state to stop issuing marriage licenses to same-sex couples, ruling in direct opposition to a federal judge that the state’s ban on same sex marriage did not violate the United States Constitution.

In a 7-to-1 decision, the court ruled that “Alabama law allows for ‘marriage’ between only one man and one woman,” and that the state’s probate judges “have a ministerial duty not to issue any marriage license contrary to this law.”

While the court found that the state’s probate judges were not legally bound by the multiple rulings by a Federal District Court judge, Callie V. S. Granade, in favor of same-sex marriage, it also delivered a long and forceful rebuttal of her decision and the findings of federal judges across the country on same-sex marriage.

(…)

n the decision, the judges insisted they could “interpret the United States Constitution independently from, and even contrary to, federal courts,” and did just that. They took on not just Judge Granade’s ruling point by point but also took issue with the United States Supreme Court’s ruling striking down parts of the federal Defense of Marriage Act in 2013. The judges said marriage is a state matter, but also made a more sweeping case, maintaining that only marriage between a man and a woman “provides the optimum environment for defining the responsibilities of parents and for raising children to become productive members of society.”

Justice James Gregory Shaw was the dissenter, questioning the ruling on several procedural grounds and concluding that the court was venturing into uncharted waters “and potentially unsettling established principles of law.”

Ronald Krotoszynski, a constitutional law professor at the University of Alabama, found the court’s ruling shocking.

“You might read it as kind of a brief or a political document to the Supreme Court of the United States,” he said. “They’re trying to lobby.”

Mr. Krotoszynski said some of Alabama’s probate judges could choose to appeal the State Supreme Court’s ruling to the United States Supreme Court on an emergency basis.

A section of Tuesday’s ruling said probate judges could file papers within five days to argue that they should not be bound by the state justices’ decision.

In a statement, the Human Rights Campaign called the decision “bizarre.”

“The Alabama State Supreme Court does not have the authority to interfere with a federal court order,” said Sarah Warbelow, the group’s legal director. “This order is outrageous and baffling, and no amount of legalese can hide the bare animus that forms the foundation of this extralegal ruling.”

Lyle Denniston notes that the Alabama Justices didn’t just defy the Federal District Court, they also essentially ignored the Supreme Court’s own rulings on the issue:

The majority opinion in the state court, issued unsigned but in the name of the court (“per curiam”), sought to refute every argument made for same-sex marriage as a constitutional matter  and lambasted the Supreme Court for making a “moral judgment, not a legal judgment” when it struck down the federal Defense of Marriage Act in United States v. Windsor in June 2013.

The Windsor ruling, which did not take any position on a right to same-sex marriage but spoke favorably of the dignity of such marriages and the need for government to respect such unions, set off the series of lower court rulings that have since made same-sex marriages legal in thirty-six states.  The Supreme Court will take up the constitutional question in April, and is expected to have a ruling by early summer.

The Alabama tribunal reached out to decide the constitutional question, according to criticism by the dissenting judge, Justice Greg Shaw.  The state’s highest court had been asked by two private groups that oppose same-sex marriage to get involved in the issue after the decision by the federal judge in Mobile, but did not seek a direct ruling on the validity of the state’s same-sex marriage ban under the federal Constitution.

The majority ruled that two private groups could stand in for the state government to raise the constitutional issue, and also allowed one of the state’s probate judges to join in the case to seek an order against issuing marriage licenses to any couple except a man and a woman.

Joining in the 134-page majority opinion were Justices Lyn Stuart, Michael F. Bolin, Tom Parker, Glenn Murdock, Alisa Kelli Wise, and Tommy Bryan.  Justice James Allen Main joined all of the opinion, except the section that found that the two private groups had a right to pursue the case as a matter originating in the state’s highest court.

Chief Justice Roy S. Moore, who had undertaken on his own to try to stop the state probate judges from issuing marriage licenses to same-sex couples, and sought to enlist the state’s governor in resisting such licensing, did not take part in Tuesday’s ruling.  His absence from it was not explained.

Judge Shaw’s dissent did not take a position on the constitutionality of the state ban on same-sex marriage, arguing that it was premature for the state supreme court to decide that issue when no lower state court had first ruled on it.

The majority opinion canvassed all of the arguments that other courts have used in nullifying state bans on same-sex marriage, and rejected each of them.  When it turned to analyzing the Supreme Court’s Windsor decision, it said the last remaining argument that could be used to support a right to same-sex marriage was the “dignity” rationale that was stressed by Justice Anthony M. Kennedy inWindsor.

The state court majority used the technique of disputing the Mobile federal judge’s decision as a way to mount criticism of the Supreme Court.  If none of the arguments used by the federal judge support same-sex marriage as a newly defined right, the state court said, that leaves only the “dignity” concept “that comes from” the Supreme Court’s Windsor decision.

There is no “equal dignity” provision in the Constitution, the main state opinion said.  “Instead,” it added, “what this notion appears to be is a legal proxy for invalidating laws federal judges do not like, even though no actual constitutional infirmity exists.”

Suggesting that the Court’s Windsor decision essentially “adopts the new definition of marriage,” the state court commented that this notion “necessarily makes a moral judgment about adult sexual relationships….Because the notion is not contained in the Constitution, one may question whether it is nothing more than intuition.”

This is really just latest bizarre development in how the same-sex marriage case has proceeded in Alabama. After losing in the District Court, failing to get a stay from the District Court, Court of Appeals, or Supreme Court, and then losing at the District Court again, the groups fighting the rear-guard action against marriage equality decided to go straight to the Alabama Supreme Court, where they obviously knew they’d get a sympathetic hearing thanks to the previous comments from Judge Moore, They did this without following normal procedure for any other legal case, which would involve starting a case in a lower trial court and then appealing that matter to higher courts, these groups went straight to the Alabama Supreme Court and asked for a ruling that would bind every single Probate Judge in the state and the Court complied with their request in what can only be described as a shockingly bizarre exercise of jurisdiction, a point that the lone dissenter makes clear in his opinion. The state Supreme Court went far beyond that, of course and proceeded to rule on the Constitutionality of the state’s ban on same-sex marriage even though that issue wasn’t really before them at all, and proceeded to issue an opinion that acted as if neither the District Court’s opinion nor the Supreme Court’s opinion in United States v. Windsor either existed or had any legal impact in Alabama. Given the Supremacy Clause and the clear direction from both the District Court and the Supreme Court on this matter, it amounts to a pretty strong thumb in the eye of the Federal Judiciary, something that is unlikely to sit well with the Justices when this matter gets before them, which is likely to happen sooner rather than later.

To a large degree, of course, these are examples of rearguard actions by forces who seem to realize quite clearly where the legal winds are blowing on this issue, The Supreme Court will hear oral argument on the same-sex marriage cases from the Sixth Circuit in April, and a decision is expected in late  June Barring something surprising, it seems fairly apparent at this point that the Court will likely strike down bans on same-sex marriage nationwide, and this legal debate will effectively be over with. If anything, this latest insanity from Alabama, which of course has a history of defying Federal Court rulings when it comes to equality, would seem to guarantee that outcome. Until then, though, it seems as though Judge Moore and his fellow Judges will continue to assert that the Constitution doesn’t really apply inside the borders of Alabama.

Here’s the Alabama Supreme Court decision and dissent:

Alabama Supreme Court SSM Opinion by Doug Mataconis

FILED UNDER: General, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. al-Ameda says:

    Until then, though, it seems as though Judge Moore and his fellow Judges will continue to assert that the Constitution doesn’t really apply inside the borders of Alabama.

    Excellent piece Doug. This is certainly nothing new for Alabama. Quite a few things have not changed in the 150 years since the end of the Civil War.

  2. C. Clavin says:

    Bizarre.
    Republicans.
    Two words that currently mean the same thing.

  3. stonetools says:

    “Alabama Massive Resistance Movie 2: The Battle Against the Gheys”, starring Roy Moore in the role made famous by George Wallace! In Alabama’s ongoing war against a new foe and against the 21st Century!

    Step right up and get your tickets now!

  4. Mikey says:

    This is like the final thrashings of a drowning man. It must really suck when you begin to understand your view of the world is going the way of the dodo.

  5. CSK says:

    What’s ironic is that some of Judge Moore’s biggest supporters are those who claim to revere the Constitution.

  6. Electroman says:

    Reconstruction II: Electric Boogaloo is clearly needed.

  7. Vast Variety says:

    Isn’t this grounds for impeachment of the Judges and Roy Moore in particular?

  8. Hal_10000 says:

    Right now, about 2/3 of Republicans are banging their heads on desks. This fight is over. The marriage equality opponents have been completely routed and are fleeing the field. And once this issue is gone, it will be so much better for the GOP, both politically and morally.

    What’s ironic is that some of Judge Moore’s biggest supporters are those who claim to revere the Constitution.

    Their affiliation to the Constitution is like their affiliation to the Bible. They highlight the sections they like and ignore the rest.

  9. KM says:

    it amounts to a pretty strong thumb in the eye of the Federal Judiciary, something that is unlikely to sit well with the Justices when this matter gets before them, which is likely to happen sooner rather than later.

    Somewhere down South of sane, Moore and company have watched 300 a few too many times and are eagerly awaiting their “This. Is. ALABAMA!!!” moment. Standing in front of a schoolhouse won’t be enough for him – Moore’s looking to cause his own version of the well scene. This would be fascinating to watch if it wasn’t so damn sad for all the innocents getting screwed over in the process…..

  10. Robert in SF says:

    Isn’t this a very clear example of the judicial activism that so-called Conservatives rail against?

    It seems that the established, agreed upon, legal process was abandoned, and a court decided an issue over which they had no jurisdiction and in fact, made a decision on a question that wasn’t before them in the case at all?

    In fact, isn’t this actually one of the few examples of judicial activism? All the other examples were just decisions that the person crying foul disagreed with…

    Any member of the Republic Party, anyone who has claimed that librul judges rule by fiat based on their own personal views, any of those persons who support this path and these decisions has not an ounce of integrity and is filled with hypocrisy!

    If I were a cynic, I would say, “What else is new?”, but I am trying my best not to be a cynic.

  11. C. Clavin says:

    Given Republican Party history…and their penchant for rank hypocrisy…the chances are well over 90% that Judge Moore is in fact gay himself.

  12. de stijl says:

    “Nullification now, nullification tomorrow, nullification forever”

    Maybe we should call up the National Guard to escort couples to the Probate Judges’ offices.

    Bonus quote: “The past is never dead. It’s not even past.”

  13. gVOR08 says:

    @Robert in SF: Only Democrats can be activist judges. IOKIYAR.

  14. It seems to me that Roy Moore is pretty much begging for an 18 U.S. Code § 242 – Deprivation of rights under color of law indictment at this point.

  15. Liberal Capitalist says:

    Imn moronic times like thee, I take hear in “Blazing Saddles!”

    So… Of course the constitution doesn’t apply in Alabama! That’s because the President is a ni,,,

    ————

    Gabby Johnson: Hey! The sheriff’s a nig…

    [Clock bell chimes]

    Harriet Johnson: What did he say?

    Dr. Sam Johnson: He said the sheriff’s near.

    Gabby Johnson: No, gone blame it dang blammit! The sheriff is a nig…

    [Clock bell chimes again]

    ——-

    Jim: [consoling Bart] What did you expect? “Welcome, sonny”? “Make yourself at home”? “Marry my daughter”? You’ve got to remember that these are just simple farmers. These are people of the land. The common clay of the new West. You know… morons.

  16. HarvardLaw92 says:

    Lol, so much for the “new” South. This is so ludicrous it defies commentary.

    ** banging head on desk **

  17. CSK says:

    @Liberal Capitalist:

    There’s a quote from Blazing Saddles for almost every occasion, isn’t there?

  18. HarvardLaw92 says:

    For the record though, if Tyrell decides to show up, avoiding this sort of pandering insanity – this exactly – is why federal judges aren’t elected.

    And why state judges shouldn’t be either.

  19. C. Clavin says:

    The silence on King v. Burwell in here is deafening.

  20. HarvardLaw92 says:

    @C. Clavin:

    The absolute worst case in King is that states with federal exchanges set up their own exchanges in response to a negative ruling, and the subsidies continue as before.

    Or they can just explain to their constituents why they no longer have health coverage. Backlash can be a beautiful thing.

  21. stonetools says:

    @C. Clavin:

    Actually, I think Doug is waiting on the transcript.I’m betting there will be a post.

  22. C. Clavin says:

    @HarvardLaw92:
    I think that’s optimistic. More likely Republicans in those states will revert to the status quo and blame any chaos on Obama.

  23. C. Clavin says:

    @HarvardLaw92:
    Did you read the transcript where Scalia says Congress will act?

  24. HarvardLaw92 says:

    @C. Clavin:

    No. I try to avoid parsing oral argument at SCOTUS. It’s akin to reading tea leaves, and usually about as accurate.

  25. C. Clavin says:

    @HarvardLaw92:
    Agreed…but it’s kinda funny.

    Scalia: “You really think Congress is just going to sit there while all the disastrous consequences ensue?”
    Verrilli: “Well…this Congress?”
    – Audience laughs –
    Scalia: “Yes…I think this Congress would act.”

  26. HarvardLaw92 says:

    @C. Clavin:

    Nino likes to grandstand by asking lots of questions and engaging in bombast. That doesn’t make him a bad person or an idiot. It’s just his nature / personality. Being loud and obnoxious is who he is. You have to take that with a grain of salt.

    I wouldn’t read too much into it. When it comes to having influence to sway his peers, he’s somewhere close to Thomas territory. They like him, but they generally don’t allow him to change their minds.

  27. OzarkHillbilly says:

    Until then, though, it seems as though Judge Moore and his fellow Judges will continue to assert that the Constitution doesn’t really apply inside the borders of Alabama. their heads.

    FTFY Doug, no charge.

  28. Siegfried Heydrich says:

    Ah, the al-Habama district of the Theocratic Christian Republic of Baptistan . . .

  29. Grewgills says:

    @Stormy Dragon:
    It won’t happen, but I’d love for there to be a federal indictment of the seven, or at least Moore, on those charges. It would be entirely warranted.

  30. MBunge says:

    @HarvardLaw92: They like him, but they generally don’t allow him to change their minds.

    I don’t think any of them have to work too hard at that. Scalia was, at one time, a very smart guy. His intellect has curdled, however. What is the last statement, opinion or ruling from him that showed any real intelligence? I don’t know if he’s lost it with age, as some do, or if his ideology has calcified and he’s not interested in persuading anyone of his self-evident truth, but does anybody think Scalia is going to impress Supreme Court scholars a century from now?

    Mike

  31. anjin-san says:

    Oh Alabama.
    Can I see you
    and shake your hand.
    Make friends down in Alabama.
    I’m from a new land
    I come to you
    and see all this ruin
    What are you doing Alabama?
    You got the rest of the union
    to help you along
    What’s going wrong?

  32. SC_Birdflyte says:

    The lyrics to “The Alabama Song” keep playing in my head: “Oh show us the way to the next whiskey bar, oh don’t ask why . . .”

  33. Barry says:

    @MBunge: “What is the last statement, opinion or ruling from him that showed any real intelligence?”

    Why be smart? He won’t lose his job, and he’s had a GOP majority for quite some time.

  34. wr says:

    @HarvardLaw92: “Nino likes to grandstand by asking lots of questions and engaging in bombast. That doesn’t make him a bad person or an idiot.”

    No, it doesn’t.

    His decisions do.

  35. Barry says:

    @HarvardLaw92: “Nino likes to grandstand by asking lots of questions and engaging in bombast. That doesn’t make him a bad person or an idiot. It’s just his nature / personality. Being loud and obnoxious is who he is. You have to take that with a grain of salt.”

    This is a man who cited the experience of Jack Bauer.