Ronald J. Krotoszynski Jr. is a professor at the University of Alabama School of Law. He served as a clerk to Judge Frank M. Johnson Jr. from 1991 to 1992.
William Faulkner famously observed that, in the South, “the past is never dead. It’s not even past.” Faulkner’s observation aptly describes contemporary events in Alabama, where Chief Justice Roy Moore has been urging officials, including state court judges, to flout a federal court order holding unconstitutional a provision of the Alabama constitution that bans the recognition of same-sex marriages. Moore has denounced the ruling of U.S. District Judge Callie V.S. “Ginny” Granade as an example of “judicial tyranny” and promises that he “will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment.” In his view, “lower federal courts are without authority to impose their own interpretation of federal constitutional law upon the state courts,” and “there’s nothing in the Constitution that allows the United States Supreme Court or federal district courts to redefine marriage.”
Moore’s constitutional logic is deeply flawed. Simply put, under the Constitution, federal law is supreme. It necessarily follows that an order from a federal court that enjoins state officers from enforcing an unconstitutional provision of state law binds all officers of the state. To its credit, the Alabama Probate Judges Association has recognized that it must comply with Granade’s order. Probate Judge Greg Norris, president of the association, said that it is “clear” that Granade’s injunction binds all state officers.
Unfortunately, attacking the federal judiciary for enforcing the Constitution has important, and obvious, historical antecedents in Alabama. Moore’s conduct echoes the shameless judge-baiting that George C. Wallace used, to great political effect, during the civil rights era against Judge Frank M. Johnson Jr., who served with great distinction on the federal district court in Montgomery. While a state circuit judge, Wallace feigned defiance of Johnson’s order to deliver county voting records to federal voting rights commissioners. Even though Wallace ultimately complied with the order, he nevertheless attacked Johnson as an “integrating, scalawagging, carpetbagging liar” who, in Wallace’s view, “hasn’t done anything for Alabama except help destroy it.”
Wallace used Johnson and the federal courts more generally as a central theme in his infamous 1962 gubernatorial campaign. Using arguments eerily similar to those being advanced by Moore, Wallace said that Alabama need not accept “dictatorial directions” from the federal courts. Moreover, Wallace promised to disregard any federal court orders requiring the desegregation of Alabama’s public schools and universities. Like Moore, Wallace decried federal “tyranny” in his inaugural address in 1963 as he called for “segregation now, segregation tomorrow — segregation forever!” As historian Jack Bass has observed, “Wallace’s attacks lasted almost fifteen years, a period in which Johnson placed Alabama’s prison system, highway patrol, property tax assessment program, mental health agency, and public education system all under the federal court’s jurisdiction.”
As the national media focus on Moore’s antics, it would be easy to assume that his views generally represent the state with respect to the rule of law. This would be a serious mistake — even on an issue as politically fraught as same-sex marriage.
As it happens, Johnson, a native Alabamian and, like Wallace and Moore, a graduate of the University of Alabama School of Law, wrote the first federal appellate court opinion invalidating a state sodomy law. Some 30 years ago, in his decision in Hardwick v. Bowers, Johnson struck down Georgia’s law as a violation of the right of privacy protected under the Constitution. He explained that “the Constitution prevents the States from unduly interfering in certain individual decisions critical to personal autonomy because those decisions are essentially private and beyond the legitimate reach of a civilized society.” Moreover, Johnson’s Hardwick opinion celebrates the intrinsic equality of same-sex couples and argues that there’s no material difference between such relationships and traditional marriages: “The benefits of marriage can inure to individuals outside the traditional marital relationship” and “[f]or some, the sexual activity in question here serves the same purpose as the intimacy of marriage.” Unfortunately, the Supreme Court overturned Johnson’s decision, 5 to 4, and it was almost 20 years before it would come to see things the way Johnson saw them in 1985.
Alabama was incredibly fortunate to have a native son who was willing to serve as a fierce defender of constitutional rights — even at great risk to his own safety and that of his family. The Rev. Martin Luther King Jr. once said of Johnson that he was “a man who gave true meaning to the word ‘justice.’ ” Alabama is also fortunate today to have a judge like Granade. Her recent decisions enforcing the equal protection clause, despite widespread political opposition, follow in the great tradition of principled and courageous Alabama jurists. As it happens, Granade is the granddaughter of another iconic Alabama civil rights-era judge, Richard T. Rives.
Yes, Alabama has Roy Moore. But Alabama also has produced jurists fully committed to enforcing the Constitution and respecting the rule of law. Moore represents one side of the Alabama judicial coin — but Frank Johnson and Ginny Granade represent the other.