The Alabama justices were defiant. “As it has done for approximately two centuries,” the court said, “Alabama law allows for ‘marriage’ between only one man and one woman.” Alabama judges have a duty “not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.”
The resistance in Alabama, where states’ rights has always been sacred writ and state supreme court justices are elected rather than appointed, has been compared by many to that state’s resistance to school desegregation orders in the 1963, when Gov. George Wallace (D) stood in the doorway of the University of Alabama to prevent the court-ordered enrollment of black students.
“The ruling of the Alabama Supreme Court offers the most forceful and clearly articulated rebuttal to date of the imaginative arguments for same-sex ‘marriage’ employed by federal courts,” said a statement from the Liberty Counsel, which challenged the lower court ruling.
What happens next is unclear. Presumably someone will go back to the federal courts to overturn the ruling. But short of a ruling on gay marriage by the nation’s highest court, which isn’t expected for months, the standoff seems likely to continue. The Alabama court suggested that it would be bound by the U.S. Supreme Court but nothing lower than that.
Indeed, the state’s highest court declared itself equally empowered as the lower federal courts to decide whether Alabama’s ban on same-sex marriage violates the Constitution — stating unequivocally that it does not in what amounted to a broadside against the trend of courts invalidating same-sex marriage bans.
It accused other courts of employing “sleight of hand” to confer “fundamental-rights status on a concept of marriage divorced from its traditional understanding.”
“Throughout the entirety of its history, Alabama has chosen the traditional definition of marriage,” the court said in a per curiam opinion, issued in the name of the court rather than a specific justice. “… That fact does not change simply because the new definition of marriage has gained ascendancy in certain quarters of the country, even if one of those quarters is the federal judiciary.”
“Marriage has always been between members of the opposite sex,” it said. “The obvious reason for this immutable characteristic is nature. Men and women complement each other biologically and socially. Perhaps even more obvious, the sexual union between men and women (often) produces children. … In short, government has an obvious interest in offspring and the consequences that flow from the creation.”
That reasoning has been rejected by roughly 60 state and federal courts around the country in the past few years. But the state supreme court said that “state courts may interpret the United States Constitution independently from, and even contrary to, federal courts” until the point where the nation’s highest court has weighed in.
That should happen in a few months. In the meantime, the U.S. Supreme Court on Feb. 9 refused to stay the Alabama decision allowing same-sex marriage until it does rule, an action that was taken by court dissenter Justice Clarence Thomas as a signal on how the high court will eventually resolve the issue.
Many thought the U.S. Supreme Court’s refusal to stay the lower court decision invalidating the ban meant that Alabama had to, or ought to, comply and issue marriage licenses. But that was not to be. About a third of the state’s 67 counties began issuing licenses, but the other two-thirds refused, citing a letter by Alabama’s firebrand chief justice Roy Moore telling them to ignore the federal court ruling. (Moore did not take part in yesterday’s ruling.)
Six of the court’s nine justices concurred in yesterday’s opinion. A seventh concurred in part and there was a single dissent, based not on constitutional issues but a contention that the court did not have jurisdiction.
David Kennedy, one of the lawyers who represented the Mobile couple who successfully challenged Alabama’s same-sex marriage ban, told Alabama.com last night that he does not think the state supreme court ruling would survive a challenge in federal court. “I don’t really think that they can do that. I’m not surprised, but I’m somewhat appalled,” he said. Kennedy said he believes that probate judges act “at their own peril” if they choose to obey the state court.
“Whenever state law conflicts with federal law, federal law wins,” he said.
“The Alabama state Supreme Court does not have the authority to interfere with a federal court order,” Human Rights Campaign legal director Sarah Warbelow told Alabama.com. “This order is outrageous and baffling, and no amount of legalese can hide the bare animus that forms the foundation of this extralegal ruling.”
It’s not that simple, however, according to scholars. While federal law and federal rulings ultimately trump state law under the constitution’s Supremacy Clause, a federal district court order to a particular probate judge — or marriage-license issuer — does not necessarily apply to anyone else in the absence of a specific order.
The Alabama Supreme Court ruling is here.
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