Today in Grand Irony

The same-sex marriage battle is on in Alabama

gay-marriageWith the lifting of the stay on the issuing of same-sex marriage licenses in the state of Alabama by the 11th Circuit Court of Appeals, the state of Alabama’s ban on same-sex marriage has been declared constitutionally null and void starting Monday the 9th of February.  This has evoked a number of strong reactions across the state, as one might imagine given the very socially conservative population therein.  Keep in mind that in 2006 the state’s voters overwhelmingly voted (81%-19%) to add Amendment 774 (yes, we really like to amend our state constitution) to the 1901 Alabama Constitution which defined marriage as between a male and female and barred state recognition of same-sex marriages from other states.

An example of such reactions is popular radio personality Rick Burgess in support of county officials refusing to issue same-sex marriage licenses:

“I think probate judges who are Christians find themselves in a “Daniel” moment from the Bible that they claim to believe. God goes on record on how He created marriage in Genesis 2:18-24. He has never changed His mind. Daniel followed the law of the land until it asked him to go against God and the Bible tells us that Daniel had resolved in his heart that he would not worship the king, even though it was the law.

If you are a Christian and a probate judge do you condone a version of marriage that goes against God even though it’s the current law of the land?   Martin Luther King Jr. in his letter from a Birmingham jail covered this when explaining to fellow pastors why he would continue to break “unjust” laws.

Christians have the same freedoms given to all people of this country to fight to raise their families in a society that best reflects their convictions. It’s time to fight.”

(Before getting to the religion angle, I must confess that the ongoing attempt to evoke civil rights leaders in this context to be problematic, if not offensive given that the civil rights movement was about expanding access to rights, not denial of rights to a class of citizens).

This point of view is shared by the probate judge in Pike County (wherein I work, but do not reside):  Allen: Pike probate office ‘out of marriage licensing business’

Rather than be forced to violate his religious beliefs by facilitating same-sex marriages, the Pike County Probate Judge said Friday he will no longer issue marriage licenses or perform marriage ceremonies.

Pike County Probate Judge Wes Allen’s statement comes three days before a ruling legalizing same-sex marriages takes effect. Anticipating a statewide response by same-sex couples seeking to wed on Monday, Allen said removing his office from the marriage licensing business allows him to follow the law and adhere to his Christian beliefs.

Allen is not alone:

At least five probate judges have said they won’t issue marriage licenses to same-sex couples on Monday. Two, in Clarke and Pike counties, say they won’t issue any licenses, even to opposite-sex couples. One, in Marengo County, says the forms will be available but she won’t sign them. And probate judges in Washington and Covington counties say they won’t issue to same-sex couples.

Probate judges in other counties have said that they will comply with the federal court rulings.

There is a lot to be said about this topic, and much, indeed, has already been said (after all, Alabama is rather late to this debate).  However, what I can’t help but find amusing in this discussion is that the citizens of Alabama also passed another amendment to the constitution in 2014 that is relevant to this discussion:  another overwhelming victory (72%-28%) to ban the application of “foreign law” in Alabama.  Specifically, it

prohibit[s] the application of foreign law in violation of rights guaranteed natural citizens by the United States and Alabama Constitutions, and the statutes, laws, and public policy thereof…

This was, of course a superfluous notion driven by irrational fear of Sharia law being applied in the state.  What I find amusing about it in this context however, is that the Bible is of foreign origin* and, therefore the attempt by state officials to appeal to it in this context violates at least the spirit of this amendment (which, I suspect, the individuals in question wholeheartedly supported).

Beyond any of that, I do say that I simply do not see a legitimate argument that allowing same-sex marriage harms Christians in any substantial way.  Despite what some have claimed, churches are not going to be forces to perform same-sex marriages, so that isn’t in play.  I do understand that there is a somewhat thorny conversation to had over certain marriage-related services.  However, I remain unconvinced that asking a baker to bake a cake is a violation of the baker’s rights–especially since I don’t see a huge moral code being deployed by these individuals for their other customers.   Indeed, any business that refuses to provide services to individuals who have violated some Biblical precept would soon be out of business (especially if one takes the Sermon on the Mount seriously).

I would even go a step further:  not all Christians interpret the Bible the way the typical Southern Baptist might, and therefore even conceding a “Biblical” view on this topic is to give opponents too much ammunition.

Of course, beyond all the silliness of the above:  it is not the job of public officials to decide on an ad hoc basis which laws they personally find acceptable.  Moreover, in a democratic government the preferences of the majority are not enough to violate human rights, and therefore there are times (e.g., 1954) that courts have to thwart the will of the majority.  (But even if we are going “majority will” here, the national view on this subject is actually pro-same-sex marriage, a fact that I think will, among other issues, heavily influence SCOTUS later this year).

—-

*To give credit where credit is due:  the observation about foreign laws and Bible came up in an amusing Daily Show bit.  The notion keeps coming back to me, however, on this same-sex marriage issue (which broke after the bit aired).

FILED UNDER: Law and the Courts, Religion, 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. DrDaveT says:

    I gleefully await the civil disobedience campaign in which wave after wave of Christian public officials go to jail rather than issue marriage licenses or perform marriage services for same-sex couples. Go for it, guys. We’re waiting.

    Of course, civil disobedience campaigns work by shaming — by rubbing society’s nose in both the injustice of the current law and the inevitable brutality of those who would enforce that injustice. When the injustice consists in refusing to help prevent people from being married, and the brutality consists of issuing marriage licenses and performing marriages, I don’t see society at large dying of shame any time soon. Better start building bigger jails in Alabama…




    0



    0
  2. Blue Galangal says:

    I’m honestly confused: is it legal for these probate judges to refuse to issue marriage licenses period? (I understand the ones who say they will issue to opposite-sex couples but won’t to same-sex couples are clearly in violation.) I mean, can they be sued, and will they go to jail or lose their jobs or what have you? I am assuming the defense is “you can go to the next county” but my imperfect recollection of the law is that that isn’t an acceptable answer to many courts.




    0



    0
  3. @Blue Galangal: It all depends on what the word “may” means in the statute, but that is up to a court to decide.

    Allen cited state law, specifically Alabama Code Section 30-1-9, which states “Marriage licenses may be issued by the judges of probate of the several counties.”

    Allen said the word “may” in the statue shows that Alabama law does not mandate that he issue marriage licenses.

    He also cited Alabama Law Code Section 30-1-7, which he said gives Probate Judges discretion regarding the performance of marriage ceremonies.

    “The word ‘may’ implies that I have a choice,” Allen said. “At this time, I am exercising my right to choose not to issue any marriage licenses to anyone.”

    I am dubious of his interpretation, but will allow that he can try and make his case if it comes to it. A lawsuit is inevitable.




    0



    0
  4. Argon says:

    In Alabama, couples may be married either by a religious minister or a judge. It would seem to me that judges in every county would need to ensure that at least someone is available to perform those duties in a timely fashion.




    0



    0
  5. OzarkHillbilly says:

    And once again some Christians seem to think the only way they can freely practice their religion is by forcing its tenets on others.




    0



    0
  6. Just 'nutha ig'rant cracker says:

    @DrDaveT: The state doesn’t need to put these people in jail, it simply needs to terminate their judgeships for failure to perform their required duties under the law. If the population wants to become outraged over these terminations, the population may do so, but even in Alabama, I wouldn’t want to hold my breath waiting for the outrage.




    0



    0
  7. David in KC says:

    I’m still stuck on the number of amendments. They need to stop playing so much with their constitution or they will go blind.




    0



    0
  8. Rick DeMent says:

    It’s hard not to notice that no one seems to be militantly against being involved in divorcing couples despite it clear and unambiguous prohibition in the bible.




    0



    0
  9. Mu says:

    For a book full of rules and regulations, the Bible is astonishingly flexible in interpretations. 50 years ago baptists were still making fun of catholics for being anti-abortion.




    0



    0
  10. @David in KC:

    I’m still stuck on the number of amendments. They need to stop playing so much with their constitution or they will go blind.

    As both a resident of the state and someone whose research involved constitutions, I would say that the Alabama constitution of 1901 is one of the worst of all time (certainly the worst of the 50 states).




    0



    0
  11. David in KC says:

    @Steven L. Taylor: I’m lazy today, how many amendments are they up to?




    0



    0
  12. @David in KC: I believe we are near 900.




    0



    0
  13. David in KC says:

    Around 8 a year, what a mess.




    0



    0
  14. Gustopher says:

    I’m disappointed that amendment 666 is kind of boring. Something about county trust funds.

    I was kind of hoping for something like: “your first born male child is now property of the devil, with the devil providing funding for sports stadiums in exchange. Please keep that in mind with family and estate planning.”




    0



    0
  15. Lynn says:

    Guess the good Christians intending to circumvent the law haven’t been paying attention to their own book.

    Romans 13:1-7 New International Version (NIV) Submission to Governing Authorities

    13 Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. 2 Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves.




    0



    0
  16. Tyrell says:

    @Lynn: NIV Bible : actually there is an on going debate about some versions of the NIV. It seems like there are problems in re wording and omissions. There are sites that explain this. I think that those published before 1990 are ok. I have used the NIV some, but I prefer the KJV/NKJV, RSV, and ESV. There are misguided efforts to re write the Bible to make it “gender nuetral”. Weird, bizarre !




    0



    0
  17. @Tyrell: You can got to Bible Gate and try any number of translations–the basic notion remains the same.

    There’s also 1 Peter 2:13-17 if you prefer:

    13 Therefore submit yourselves to every ordinance of man for the Lord’s sake, whether to the king as supreme, 14 or to governors, as to those who are sent by him for the punishment of evildoers and for the praise of those who do good. 15 For this is the will of God, that by doing good you may put to silence the ignorance of foolish men— 16 as free, yet not using liberty as a cloak for vice, but as bondservants of God. 17 Honor all people. Love the brotherhood. Fear God. Honor the king.

    (and that’s NKJV and not NIV)




    0



    0
  18. The bottom line is this: there are all kinds of statement, edicts, and commands in the Bible and one could, all day long, play an interpretation and/or “proof text” game. Ultimately what one will find is that the text isn’t really guiding the conclusions, but the conclusions of the text-selector guiding the selections of the text.

    Further, there are Christians who do not interpret the passages on homosexuality the same as others.

    There is no winning that argument on that basis, but the good news is that argument is not a theological one, but a constitutional one.




    0



    0
  19. Just 'nutha ig'rant cracker says:

    @Mu: Interestingly enough, I actually was a Baptist in those days and remember the situation well. At the time, as I recall, Baptists were opposed to abortion in general, but more importantly, they didn’t feel that Catholics–specifically the Pope–should tell non-Catholics how to live. In many matters, Baptists believed that free will and agency–the right to decide matters of conduct as an individual matter–trumped even the teachings of the Bible for people “not of the faith.”

    50 years changes a lot of things. The change within my congregation on these matters started in the late 60s. Roe v. Wade also played a role. when my state legalized abortion in about 1965, no one said anything, when the Supremes weighed in, everything changed on abortion.




    0



    0
  20. Tony W says:

    @Just ‘nutha ig’rant cracker:

    50 years changes a lot of things.

    Ultimately this is the big argument against religion. If it’s truth (TM) it should never change. Dogma gets in the way of progress.




    0



    0
  21. LaMont says:

    To play devil’s advocate – how is this any different than the ruling concerning Hobby Lobby and birth control? The premise is that corporations are people. In this scenario we now have actual people declining a service based on their religious beliefs. How does the Supreme Court reconcile the two in spite of this gigantic same-sex marriage wave?

    I’m just sayin – yes, the Supreme Court may eventually allow same sex marriage but I would not be surprised if they put individual exceptions and conditions on it consistent with the Hobby Lobby ruling.




    0



    0
  22. DrDaveT says:

    @Just ‘nutha ig’rant cracker:

    The state doesn’t need to put these people in jail, it simply needs to terminate their judgeships

    Yeah, I succumbed to hyperbole to preserve the parallel with the civil rights movement. I suspect we’ll find that this crop of civil disobedients really doesn’t grok the notion that it isn’t civil disobedience if you don’t suffer at least some minor inconvenience for it. (See also Cliven Bundy, etc.)




    0



    0
  23. DrDaveT says:

    @Tyrell:

    I prefer the KJV

    Unless you are a linguist or a biblical scholar, that won’t work. Those words don’t mean what you think they do, because the language has changed in the meantime. A lot.

    I prefer the KJV for poetic value; if I want to understand what the authors of the bible were saying, I read a scholarly modern translation — preferably something like the Amplified Bible, which gives alternate readings in-line. And I occasionally read translations by non-Christians, which can be a real eye-opener…




    0



    0
  24. DrDaveT says:

    @Tyrell:

    actually there is an on going debate about some versions of the NIV

    Among scholars, or among monolingual American protestant fundamentalists? I’d love a citation here.




    0



    0
  25. JohnMcC says:

    The news this morning is that Chief Justice Moore has sent a letter to Alabama’s Probate Judges declaring that they will be subject to some counter-action from Governor Bentley for issuing licences to same sex couple to marry. And that Alabama Circuit Court Judge Graffeo officiated ‘tearfully’ over a SSMarriage this morning. Total chaos. You have to love Alabama. (Hint — it’s easier now that I don’t live there.)




    0



    0
  26. HarvardLaw92 says:

    Related news: Earlier this morning SCOTUS denied Alabama’s request for a stay pending their ruling later this year. This is pretty unusual – they tend to always grant stays in matters related to appeals that are pending before them – and almost certainly telegraphs with a much higher degree of certainty their intention to rule in favor of SSM.

    The fat lady isn’t singing yet, but she just walked out onto the stage. In practical terms, the battle is over. We’ll win.




    0



    0