Same-Sex Marriages Go Forward In Alabama While Roy Moore Channels George Wallace

In the end, there is no difference between Roy Moore resisting a Federal Court Order related to same-sex marriage and George Wallace's efforts to block desegregation.

Gay Marriage Wedding Cake Two Women

Same-sex marriages went forward today in Alabama, for the most part, notwithstanding an effort by the Chief Justice of the state’s Supreme Court to prevent Probate Judges from issuing marriage licenses to same-sex couples:

BIRMINGHAM, Ala. — Amid conflicting signals from federal courts and the chief justice of Alabama’s Supreme Court, some Alabama counties began granting marriage licenses to same-sex couples on Monday in a legal showdown with echoes of the battles over desegregation in the 1960s.

In major county seats like Birmingham, Montgomery and Huntsville, gay couples lined up outside courthouses as they opened, and emerged smiling, licenses in hand, after being wed by clerks or by the judges themselves.

At the Jefferson County Courthouse here, Judge Michael G. Graffeo of Circuit Court officiated, at times tearfully, at the civil wedding of Dinah McCaryer and Olanda Smith, the first to emerge from the crowd of same-sex couples who lined up Monday morning. “I now pronounce Olanda and Dinah are married spouses, entitled to all rights and privileges, as well as all responsibilities, afforded and placed upon them by the State of Alabama,” Judge Graffeo said.

But in the small town of Troy, all was quiet at the Pike County Courthouse, where Judge Wes Allen of Probate Court, like his counterparts in some other counties, had decided that rather than issue licenses to same-sex couples, he would not grant marriage licenses to anyone. “We don’t have any appointments, and we have a sign up saying that we aren’t issuing any licenses at this time,” he said.

This morning’s events came in the wake of an Order issued late Sunday night by Alabama Supreme Court Chief Justice Roy Moore who, as Steven Taylor has previously noted, has reacted to the recent Federal Court rulings on Alabama’s ban on same-sex marriage, in which Moore purported to order all of Alabama’s Probate Judges, who are responsible for issuing marriage licenses in the state, to ignore the Federal Court order:

On Sunday night, the state’s chief justice, Roy S. Moore, sent an order to county Probate Court judges, telling them not to issue the licenses, in defiance of a Federal District Court ruling that is being appealed by the state. But on Monday morning, the United States Supreme Court refused to stay the District Court order pending the outcome of that appeal.

Chief Justice Moore’s position on the balance of federal and state power has deep resonance in a region with a history of claiming states’ rights in opposition to the federal government, and in a state where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.

In his order to probate judges, Justice Moore cited the state constitutional amendment prohibiting gay marriage, approved by 81 percent of voters in 2006, and said that he, as chief administrator of the state courts, has authority over the probate courts. In interviews, he has argued that the state courts are not bound by the federal court’s order; in 2003, he refused to obey a federal court order to remove a Ten Commandments monument he had installed in the rotunda of the Alabama Judicial Building in Montgomery, though it was moved over his objections.

Although much has changed from Wallace’s era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that in the same-sex marriage case, the federal judge, Callie V. Granade, an appointee of President George W. Bush, had instigated a grave breach of law. The result has been a legal and cultural debate rife with overtones of history, religion and a chronically bubbling mistrust of the federal government, playing out at Alabama’s courthouses.

Additionally, the United States Supreme Court declined to stay the Federal Court’s ruling with respect to the Alabama law, a move that many are seeing as a sign of how this issue will ultimately be decided by the Justices later this term. In any case, though, Moore’s position here is as much nonsense as his position regarding the Ten Commandments monument that led to his dismissal from the bench more than ten years ago. In this case, the Federal Judge’s Order and finding have not been overturned on appeal and have not been stayed by either the 11th Circuit Court of Appeals or the Supreme Court. The assertion that the state courts, or other state officers such as those involved in the issuance of marriage licenses, are not bound by the Federal Court Order is quite simply absurd. Unless and until that order is overturned or its effect stayed, it stands as the law of the land in the State of Alabama. Even if an individual Probate Judge was not a party to the lawsuit that resulted in the issuance of the original order, if they refuse to comply with it then they can be brought before the Court in a separate proceeding and the result will be exactly the same.

At this point, there is no difference between what Roy Moore is advocating here and what George Wallace did when he stood before the doorway of the University of Alabama in an effort to prevent African-Americans from enrolling in the school notwithstanding a Federal Court order that this must happen. In both cases, we have a politician, and make no mistake about it, Roy Moore is acting far more like a politician than a jurist here, who is appealing to outright bigotry and openly defying a Federal Court Order. Ultimately, the Supremacy Clause tells us that the Federal Courts will win this dispute, but it’s rather obvious that Moore and others like him will exploit this matter as much as they can before its over. Meanwhile, though, at least some of Alabama’s gay and lesbian citizens are able to take advantage of the equality under the law they are entitled to. Let’s hope it isn’t too long before that expands to the rest of the state.

FILED UNDER: Law and the Courts, US Politics, ,
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. HarvardLaw92 says:

    Slot me into the “today’s denial as much as signals that it is over” camp. The tenor and poorly concealed rage of Thomas’s dissent made that much clear for me.

  2. michael reynolds says:

    @HarvardLaw92:

    His rage is sweet, sweet nectar to me.

    Rage, rage, you brain-dead relic.

  3. Robert in SF says:

    I could swear I have seen headlines of “news”/political opinion pieces that reference the “confusion” of whether the question is settled on the Federal Court jurisdiction in this case, or other such wording.

    As though anytime someone refuses to agree that means there must be confusion and therefore the issue is not settled or clear….like climate change or Benghazi, etc..

    There are none so blind as those who *will* not see.

  4. HarvardLaw92 says:

    @michael reynolds: The mental image that keeps bringing a smile to my face is that of Roy Moore raging in his office and furiously pecking away sending missives from the mountain telling probate judges to ignore a federal court ruling. The man is positively channeling George Wallace.

  5. ernieyeball says:

    @HarvardLaw92:..The man is positively channeling George Wallace.

    If he can can channel George Wallace maybe someday in the future he will say:

    I was wrong. Those days are over, and they ought to be over.

    In 1979, Wallace said this of his stand in the schoolhouse door.

  6. HarvardLaw92 says:

    @Robert in SF: I suspect that the sight of recalcitrant Alabama probate judges being brought before the federal court and facing contempt, which is almost certainly the next act of this sad soap opera, will help make the issue clearer for those people.

  7. HarvardLaw92 says:

    @ernieyeball: One can hope that even the Roy Moores of this world will some day see their evil for what it is and renounce it, agreed. It would be a better world.

    In the meantime, for a lawyer anyway, this tantrum that he is throwing is downright hilarious.

  8. C. Clavin says:

    Justice Moore cited the state constitutional amendment prohibiting gay marriage, approved by 81 percent of voters in 2006

    Because voters would never approve of an un-constitutional measure.
    So…today Alabama, and the US, is just a little bit freer…in spite of people like Roy Moore.
    Boo-yah

  9. Argon says:

    It sounds like the judges are not listening to Moore. They’re either issuing licences for everyone or nobody. This is different than selectively giving licenses to opposite sex couples.

    Still, I don’t see that the probate judges that have stopped issuing licenses altogether have a leg to stand on. There is no way to justify some county seats selectively providing state services.

  10. Moderate Mom says:

    Unless and until so many, mostly fundamental Christians, stop believing that homosexuality is a “choice”, this kind of thing will continue to happen. Thank goodness that more and more people realize that same sex attraction is no more of a choice than their heterosexuality it.

    Can’t wait for the Supreme Court to rule on this and make equality on marriage a Constitutional right.

  11. KM says:

    @Moderate Mom:

    Unless and until so many, mostly fundamental Christians, stop believing that homosexuality is a “choice”, this kind of thing will continue to happen.

    When enough straight couples have to go to another county (or god forbid, another state) to get married because an idiot decided to play politics, it’ll stop. Inconvenience enough of the majority and suddenly they’ll “get it” and finally give a damn. Inconvenience them for a stupid reason over something that already drives people crazy on a good day, you have the recipe for a political disaster.

    Forget the Supreme Court – Moore needs to fear the Bridezillas that will be knocking down his door because he dares interfere with their special day! Change the venue at the eleventh hour? Hell no, we’re changing Judges instead!!

  12. Scott says:

    Actually, the humor is the several probate judges that are defying Judge Moore. I’m waiting for Judge Moore to go nuclear.

  13. HarvardLaw92 says:

    @Scott: Another ethics complaint (like the previous one that resulted in his removal from office) regarding his actions and statements in this affair has already been filed with the Alabama Judicial Inquiry Commission. Stay tuned for the next exciting chapter 🙂

  14. Grewgills says:

    @HarvardLaw92:
    I’m really hoping he is removed from office again. I’m hoping this time he will be disbarred, but won’t be holding my breath for that one.

  15. legion says:

    @Scott: It’s not very nice of me, but I totally want to see him hold a press conference to “condemn” those judges (or better yet, try to fire them) and flat-out bust a blood vessel on live tv.

  16. legion says:

    @Grewgills: Well, he’s giving demonstrably incompetent legal advice to the Governor, so there might actually be a case for disbarment…

  17. Barry says:

    @Argon: “There is no way to justify some county seats selectively providing state services.”

    Also, there’s no way to justify somebody refusing to carry out their office, due to their carefully selected[1] beliefs.

    [1] As somebody pointed out, how many of these ‘biblical’ officials have categorically refused to grant divorces?

  18. ernieyeball says:

    @HarvardLaw92:..In the meantime, for a lawyer anyway, this tantrum that he is throwing is downright hilarious.

    My ex wife was in law school when I met her so maybe I don’t have to be a lawyer to think ole’ Roy Boy is a riot!
    https://www.youtube.com/watch?v=3hIcKkKID8k

  19. Bob says:

    Is it customary for a state Supreme Court chief justice to issue orders without the consent of other justices? From what I can tell Moore acted without any other justice joining the order.

  20. HarvardLaw92 says:

    @Grewgills:

    Just speaking from the outside, but given how the commission reacted to his last set of antics, removal seems a likely conclusion this time around. I’m no expert on Alabama judicial rules, but I suspect disbarment might have to be a separate proceeding. That said, if anybody ever merited disbarment, this clown does.

    The last time, it was just Moore defying a federal court order. This time, he’s issuing orders to an entire judiciary directing them to defy a federal court order. It’s orders of magnitude worse than what he did before.

  21. JohnMcC says:

    I harken back to the remarks of Pres Andrew Jackson concerning the South Carolinians who provoked the first ‘nullification’ crisis in 1828. He pledged to “hang every leader…of that infatuated people, sir, by martial law, irrespective of his name or political or social position!”

    If Mr Clive Bundy had dealt with an administration with that sort of cojones would we be hearing anything from Judge Moore today? I leave interested persons to find their own answer.

  22. DOMA was slapped down because the SC ruled that the federal government had gone too far when it tried to assert itself over the objections of States. In this case the state asserted itself with an overwhelming and Constitutional (state constitution) change, and a federal court is asserting itself.

    Anyone see the double standard here?

  23. Neil Hudelson says:

    @Peter Lounsbury:

    No, because they are different laws. DOMA was federal overreach. Anti marriage equality laws violate equal protection.

    Both were unconstitutional, but for different reasons.

    The federal court “asserted” itself in both cases, I guess, since your definition of “assertion” seems to mean “made a decision on a case before them.”

  24. Mikey says:

    @HarvardLaw92: “The last time, it was just Moore defying a federal court order. This time, he’s issuing orders to an entire judiciary directing them to defy a federal court order. It’s orders of magnitude worse than what he did before. ”

    And he’s going even further than that now–he is threatening prosecution of probate judges who issue marriage licenses to same-sex couples.

    http://christiannews.net/2015/02/09/alabama-chief-justice-charges-will-be-filed-against-judges-who-issued-gay-marriage-licenses/

    “MONTGOMERY, Ala. – The chief justice of the Supreme Court of Alabama has announced that probate judges who defied his orders not to issue same-sex “marriage” licenses in violation of the state constitution will now face charges.

    “Charges will be filed against probate judges who violated the chief justice’s orders,” Roy Moore wrote on Facebook Monday night.”

  25. HarvardLaw92 says:

    @Mikey:

    Given how quickly Roy is going off of the deep end here, I suspect that we may be seeing the other justices on the AL Supreme Court step in soon and overrule him (like they did before in his previous outing down crazy lane). The guy has gone well beyond posturing politician at this point. He’s in the realm of the unhinged now.

    I’ll note too that Granade now has a motion before her seeking injunctive relief against at least one probate judge in Alabama (filed late yesterday afternoon). We’ll see how that one pans out.

  26. rudderpedals says:

    Sounds like a job for W.o. Mandamus

  27. HarvardLaw92 says:

    @Peter Lounsbury:

    For the sake of my own edification as a lawyer, could you please expand on this theory of yours (and be as specific as possible with regard to how the rulings in Hollingsworth and Windsor support the reasoning)?

    Thnx

  28. Tyrell says:

    @C. Clavin: I am not against “gay” marriage as such: what people do in their own homes or property is their private business. What puzzles me is that in several states the people voted by large margins to have a legal definition of marriage. These were legal elections. Both sides had their turn at bat and plenty of time to rally their voters. They simply lost. Maybe next time they would win, who knows. It just seems these federal judges are ignoring the will of the people. What is the use in even having people vote on valid, legal amendments to their state constitutions? Maybe the federal judges feel that the states should not even be allowed to have a constitution or any power at all; it just might infringe on their authority. It just seems to me that there is the issue of the states right to conduct business and amend their own constitutions, and also be fair. Just what limit is there on these federal judges ? From the talk on the local radio call in shows, plenty of people are concerned and bewildered by these federal court decisions.

  29. HarvardLaw92 says:

    @Tyrell:

    What is the use in even having people vote on valid, legal amendments to their state constitutions?

    It’s a great way to drive conservative voters to the polls, which is primarily what it was intended to do.

    For the 9,000th time – we are not a democracy. We are a representative, constitutional republic governed by a written constitution construed as the supreme law of the land. All state laws and state constitutions are inferior to that document.

    You do not get to vote on constitutional rights. Equal protection is a constitutional right, ergo you can not pass any law or state amendment which violates it – EVEN IF 100% OF THE PEOPLE IN A STATE VOTE IN FAVOR OF IT.

    That’s the bottom line.

  30. Robert in SF says:

    @Tyrell:

    It just seems to me that there is the issue of the states right to conduct business and amend their own constitutions, and also be fair.

    Ted Olson had a counter-argument: could some [State] Constitution be revised to include freedom of the Press, except Fox News? Could they vote to remove the freedom of speech from Mormon’s, or handicap people?

    Of course, I think there is a foundation now that certain freedoms and rights are limited based on reasonable rationale (freedom of speech vs shouting “fire” in a crowded theater), or if there is a significant enough reason to do so (scrutiny of the actions as considered using a rational basis, or heightened scrutiny if messing with certain classes of persons).

    See this interview with Ted Olson for various other arguments/counters:

    https://www.youtube.com/watch?v=0OE-gNhcl6A&index=30&list=FLa-WpvWsv1RBPWTxMHpo8eg