Last night the Alabama Supreme Court issued a ruling ordering an end to same-sex marriages in the state.
This was a very curious action. As you may recall, a federal court earlier this year declared Alabama’s ban on same-sex marriage unconstitutional. The 11th U.S. Circuit Court of Appeals and the U.S. Supreme Court both declined to stay this ruling. This paved the way for same-sex marriages to begin in Alabama on Feb. 9.
In Alabama, county-based officials known as probate judges issue marriage licenses. Alabama Supreme Court Chief Justice Roy Moore issued a directive ordering probate judges not to issue licenses to same-sex couples, on the grounds that they were not bound by the federal judge’s order.
While many probate judges initially followed Moore’s directive, they soon began abandoning him after U.S. District Judge Callie V. Granade ordered a probate judge in Mobile County to begin issuing marriage licenses to same-sex couples. The order was widely interpreted as a sign that Granade had little tolerance for more delays.
Rather than just accept the fact that same-sex marriage is now legal in Alabama, the Alabama Policy Institute and Alabama Citizens Action Program, two Religious Right groups that are not even parties to the case in federal court, filed a petition with the Alabama Supreme Court, an action that led to last night’s ruling.
Moore did not participate in the 7-1 ruling, but his fingerprints are all over it. The decision is studded with common Religious Right talking points: claims that same-sex marriage will lead to polygamy or marriages between adults and minors; assertions that the primary purpose of marriage is procreation; arguments that extending marriage to same-sex couples represents “a fundamental shift in the social fabric of America” and so on. Throughout the opinion, the word “marriage” is put in scare quotes when used to refer to same-sex unions.
The U.S. Supreme Court will hear oral arguments in a same-sex marriage case next month. A decision will follow by the end of June. It’s possible that the high court will allow states to retain their bans on same-sex marriage. But as of today, a federal court has made clear that the Alabama same-sex marriage ban is unconstitutional, and the members of Alabama’s Supreme Court simply can’t wave their hands and make that go away.
Americans United has been assisting same-sex couples in Alabama who want to get married but are being blocked by recalcitrant probate judges. Thanks to our work, several were able to get married, but some still need help. Last night’s ruling will undoubtedly add roadblocks to the process, but we’re confident that it will not stand. A federal court has already decided this matter. The fact that most members of the Alabama Supreme Court don’t like that is irrelevant.
What happens now? It’s hard to say. Probate judges with common sense should realize that the Alabama Supreme Court will not be able to block federal court orders applying the U.S. Constitution and should continue issuing marriage licenses to same-sex couples. But others, who have been unwilling to issue the licenses all along, will undoubtedly seize on the ruling as an excuse to continue turning away gay couples.
AU and its allies will respond to this reckless decision. The federal court should reinforce the idea that, no matter what the Alabama Supreme Court says, Alabama’s probate judges must follow the Constitution and treat same-sex couples equally.
There is a larger issue here, and that is one of simple decency. We had hoped that Alabama officials, having exhausted their options in federal court, would have the decency to accept reality and allow same-sex couples to take advantage of their constitutional right to marry.
Instead, they have decided to go full-blown into the George Wallace mode. Wallace, you probably remember, vowed to resist racial integration with every fiber of his being. He is famous for standing in a schoolhouse door, trying to block African-American students from entering the University of Alabama.
None of that worked out well for Wallace or the state of Alabama. Chances are, it won’t work out well this time either.