Fifty-two years later, we have again a clash between the federal government and the state of Alabama — not just an argument or a set of competing legal briefs, but an old-fashioned, bar-the-door confrontation. This time it’s over same-sex marriage, and it’s going to put national Republicans in a very awkward position.
Recent decisions by federal courts striking down laws banning same-sex marriage have brought such marriages to many conservative states that had banned them. While there have been appeals and plenty of grumbling, in places like Oklahoma and Utah, same-sex couples have been able to wed. But Alabama is a special case because of the resistance coming from state government. A federal district court struck down the state’s law banning same-sex marriage, and issued a stay that expired today.
Yesterday, the chief justice of the state’s Supreme Court, Roy Moore (more on him in a moment) wrote a letter to all the state’s probate judges (who issue marriage licenses) telling them that they were forbidden from complying with the federal court’s ruling. Then this morning, the Supreme Court denied Alabama’s appeal, opening the way for same-sex couples to get married starting today. But that’s not going to end things.
The state’s attorney general, Luther Strange, told Buzzfeed:
“I regret the Supreme Court’s decision not to stay the federal district court’s ruling until the high court finally settles the issue this summer. In the absence of a stay, there will likely be more confusion in the coming months leading up to the Supreme Court’s anticipated ruling on the legality of same-sex marriage.”
That’s an awfully revealing thing to say, because there actually is no “confusion.” When the Supreme Court tells you that you have to allow same-sex couples to marry, you have to allow same-sex couples to marry. Period. There’s no more confusion about that now than there was when the Supreme Court told Alabama it had to admit African-American students to its university.
Then there’s Chief Justice Moore. He’s widely known as the “Ten Commandments judge” because in his first term as the state’s chief justice, he installed a huge monument to the Ten Commandments in the state Supreme Court’s building. He then refused to remove it, despite its obvious violation of the Establishment Clause of the Constitution, and he was eventually removed from his position. After taking the monument on tour and making a couple of unsuccessful runs for governor, Moore was elected Chief Justice again in 2012. He has made clear that he believes that biblical law trumps worldly laws, the state of Alabama’s laws trump the federal government’s laws, and the Supremacy Clause can go straight to hell. So while I was unable to find any comment Moore has made this morning on the Supreme Court’s denial of a stay, you can be assured that he will reiterate his order and tell the probate judges that they may not marry same-sex couples.
Early reports show that some of those probate judges are marrying same-sex couples and some are siding with more refusing. While it’s hard to imagine the National Guard being called out, this confrontation isn’t going to end today.
If you’re a prominent Republican — say, one who is running for president — how do you react to this controversy? Some GOP presidential candidates, such as Jeb Bush and Marco Rubio, have been urging respect for the Court’s decisions on the issue, so perhaps they will oppose what is happening in Alabama. On the other hand, if they oppose what is happening, they are all but admitting that the battle over this issue is over and even the most conservative states have to accept it. That would upset social conservatives who want Republicans to continue to fight the advance of gay marriage. And there’s at least one candidate, Mike Huckabee, who has been advancing the insane theory that Supreme Court decisions have no force of law unless Congress passes a bill validating what the Court has ordered. I expect him to come out in support of Moore’s position. Others, such as Bobby Jindal and Ted Cruz, have also urged maximum resistance to the country’s evolution on the issue, so it’ll be interesting to hear what they say about Alabama.
For many Republicans, this issue will probably carry way too many echoes of the civil rights battles of the 1960s — a fight in which states’-rights warriors were on the wrong side. So if states’ rights is becoming an increasingly high-profile issue, where will they come out? Will they begin advocating “personal choice” for state officials anywhere on whether to give marriage licenses to same-sex couples?
Add this to the growing list of issues Republicans would prefer not to talk about.