Alabama judge defies federal order, instructs state not to issue licenses for gay marriage

Oh Jebus (sorry, Dr. Craig!), Alabama continues to show itself as a retrograde state with a Bronze Age morality. According to the New York Times, Alabama’s Chief Justice (i.e., of the state supreme court) has ordered that state employees ignore the ruling of a Federal District Court that state licenses for gay marriage would be issued starting this morning.

Alabama Chief Justice Roy Moore, a Republican (of course), is famous for having refused to remove a monument to the Ten Commandments from his courthouse lawn. He was removed from office for that act of defiance, but was then re-elected as Chief Justice.   From the Times:

“Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the Alabama Constitution or state law, the chief justice wrote in his order.

The order, coming just hours before the January decisions of United States District Court Judge Callie V. S. Granade were scheduled to take effect, was almost certainly going to thrust this state into legal turmoil. It was not immediately clear how the state’s 68 probate judges, who, like Chief Justice Moore, are popularly elected, would respond to the order.

. . . by Sunday night, the chief justice, faced with the prospect of many judges allowing same-sex marriages to move forward, acted, in part, “to ensure the orderly administration of justice within the State of Alabama.”

Reached by telephone late Sunday night, Ben Cooper, chairman of the board of the gay rights group Equality Alabama, said that same-sex couples expected to be issued marriage licenses Monday morning.

“We are continuing to move forward tomorrow,” Mr. Cooper said. “If we walk in and licenses are refused, if they do not comply with the federal order, then these probate judges could be personally liable,” said Mr. Cooper, who added that he expected legal actions to be filed against the individual probate judges if they do not issue the licenses.

Already several probate officers, who issue the licenses, have said that they would not issue them to gay couples regardless, or to any couples. This, of course, comes out of the bedrock Christianity that permeates the state.

Where we are with this is right back to the days of George Wallace, the Alabama governor who refused federal orders to integrate the University of Alabama, even standing in the school doors to prevent black students from entering. Except this time it’s not for blacks, but for gays.

And, like Wallace’s act of bigotry, this one won’t stand. Federal court decisions take precedence over those of state courts, and everyone knows that. Unless the Supreme Court of the U.S. overrules Granade (and I see that as unlikely), Alabama will have to bite the bullet and allow gay couples to get married.  Judge Moore knows this, too, so why his dumb order? I suspect it’s because, like the Ten Commandments affair, it’s a way to build popularity with his constituents, for in Alabama all Supreme Court justices, including the Chief Justice, are elected. And Alabama voters, by and large, aren’t exactly down with Enlightenment values.

Within a decade, gay marriage will be legal everywhere in my country, and the U.S. Supreme Court—with the exception, perhaps, of Scalia and Thomas—will have affirmed that. Roy Moore and his supporters are bucking the tide of both morality and history, and in the end they’ll go down beside George Wallace as the death rattle of southern bigotry.

57 Comments

  1. bobkillian
    Posted February 9, 2015 at 9:10 am | Permalink

    ” the U.S. Supreme Court (with the exception of, perhaps, Scalia and Thomas)”

    Scalia and his hand puppet, of course. But don’t forget Alito. He’s proud to be as backward as them.

  2. bobkillian
    Posted February 9, 2015 at 9:10 am | Permalink

    +

  3. Randy Schenck
    Posted February 9, 2015 at 9:12 am | Permalink

    Before you brought it up I was just thinking of George Wallace standing in the door to block entrance to the University.

    Only by technicality Iowa was, I believe, the second state to legalize gay marriage and by technicality, I mean the state constitution said you had to do it. So the state supreme court did it and the following election 4 or 5 were voted off the court.

  4. Benjamin Branham
    Posted February 9, 2015 at 9:17 am | Permalink

    I found it a bit comical that Judge Nick Williams makes reference to the US constitutionality of marriage when the word “marriage” appears zero times in the US constitution. And the FMA was shot down, so it never even existed. Then he throws in “so help me god” for good measure in the typical “maybe everyone will think it somehow applies even though it’s irrelevant” religious fervor style.

  5. Posted February 9, 2015 at 9:27 am | Permalink

    I certainly hope some of these folks end up in federal prisons. Not holding my breath.

  6. Posted February 9, 2015 at 9:28 am | Permalink

    The Roger B. Taney fan club is hard at work swearing their allegiance to antiquated bigotry.

    So gather round, gather round chillun’ …

  7. Ionescu
    Posted February 9, 2015 at 9:28 am | Permalink

    Maybe things would come down by education. After all there are humans. Some have penises. Some have vaginas. Some have both. Some have black hair. Some have brown skin. Some have red eyes. End of story.

    So one citizen wants to marry another citizen, than, because of medical issues, the couple wants to raise children. Why make such simple statements cover so many pages of laws and debates just because some like role playing?

    And what is that the ‘normal’ family? A christian wet dream. I haven’t met in my entire life such a family. There are grandparents, uncles, aunts, older brothers and sisters. Never only a ‘dad’ and a ‘mum’ and the little children all alone.

  8. eric
    Posted February 9, 2015 at 9:30 am | Permalink

    Judge Moore knows this, too, so why his dumb order? I suspect it’s because, like the Ten Commandments affair, it’s a way to build popularity with his constituents, for in Alabama all Supreme Court justices, including the Chief Justice, are elected.

    Oh, I think he’s not just doing it for the votes: he’s obviously (IMO) a true believer. He’d do it even if he thought it was going to cost him his position…after all, he’s already made such a decision once.

    Evidently, a local federal judge has already responded to Moore by saying, basically, clerks who follow Moore’s order could become personally liable in any future suit. See Ed Brayton’s blog, comment #11, here. This puts the clerks in a sticky spot: don’t issue the licences and possibly get sued/put in jail, or issue them and incur the wrath of their own state judiciary. No promotion for you, ever. Possibly no job for you. Given this direct conflict between federal and state orders, I think the feds really need to move fast to correct the situation. This is not a situation that you want to let fester until someone sues or loses their job, this is the sort of problem you want to fix before the damage happens.

    • Sastra
      Posted February 9, 2015 at 10:20 am | Permalink

      Good point. Ideologues aren’t necessarily pandering for popularity, they are living a story in their heads and often want martyrdom. They want to suffer for supporting what is Right and True. Someone engaged in Playacting for God is a major cause of strife in the rational world.

      Those clerks are now set between a rock and a hard place.

      • gravelinspector-Aidan
        Posted February 9, 2015 at 4:32 pm | Permalink

        Those clerks are now set between a rock and a hard place.

        … and the mutiny implied by not issuing any licenses is probably one of their few ways out. A legalistic parallel to “Kill them all and let god sort them out.”

    • tubby
      Posted February 9, 2015 at 10:35 am | Permalink

      Yeah, it’s bad that the clerks are going to be stuck in the middle of this and perhaps not issuing any certificates at all right now might be the best choice they have to avoid being the carnage in the judiciary’s fight.

      • eric
        Posted February 9, 2015 at 11:56 am | Permalink

        I hope they decide as a group to ignore Moore and obey federal law. Doing it collectively may also make it harder for Moore to punish them. But I would probably hesitate on second guessing some individual clerk’s decision if they didn’t. Its easy enough for me to point fingers when its not my job or my families’ livelihood on the line.

        Civil servants often have some disdain for political appointees and elected officials; they come, they go, the civil servants remain through it all. Hopefully any management layer between the clerks and the elected judges will be willing and able to shield employees issuing licences from the worst of it, until the political storm passes.

        • gravelinspector-Aidan
          Posted February 9, 2015 at 4:35 pm | Permalink

          Doing it collectively may also make it harder for Moore to punish them.

          Won’t doing anything “collectively” get them on the hit list of House Committee on UnAmerican Activities for being a member of a communist-like organisation?

  9. Posted February 9, 2015 at 9:30 am | Permalink

    And if anyone happened to miss it, intellectual giant Mike Huckabee declared being gay is no different than choosing to drink or use profanity.

    • Maria
      Posted February 9, 2015 at 10:03 am | Permalink

      Huckabee hangs out with Ted Nugent. Enough said. 🙂

      • Pliny the in Between
        Posted February 9, 2015 at 10:20 am | Permalink

        Ted may have an excuse – Bartonella infections rarely lead to encephalopathy.

  10. still learning
    Posted February 9, 2015 at 9:32 am | Permalink

    Per Google News, SCOTUS has just said Alabama must allow gay marriage.

  11. Brygida Berse
    Posted February 9, 2015 at 9:35 am | Permalink

    The U.S. Supreme Court today rejected the Alabama Attorney’s General petition to extend a hold on the Federal judge’s ruling, effectively giving the green light to issuing licences. Scalia and Thomas dissented.

    • Posted February 9, 2015 at 9:49 am | Permalink

      Ha! I was right! (See above.)

      • Posted February 9, 2015 at 10:35 am | Permalink

        Well-predicted sir! Ha! Right on the money.

        • Brygida Berse
          Posted February 9, 2015 at 11:24 am | Permalink

          With all due respect to Professor CC, the dissent of the Evil One and his Puppet was rather easy to predict.

      • Les Faby
        Posted February 9, 2015 at 1:18 pm | Permalink

        Good work!
        I was wondering who the two were.

        Want to hear irony? Scalia’s dissent in Lawrence v Texas is often cited in decisions affirming marriage equality. He said the Lawrence decision would lead to legalized gay marriage. He said that because adult infertile couples were able to marry, so could gays.

        Wouldn’t it be icing on the cake if Scalia’s dissent was cited in the Supreme Court decision legalizing marriage?

  12. Maria
    Posted February 9, 2015 at 9:49 am | Permalink

    I want to see these same people (bigots) get as worked up about people eating bacon, getting tattoos, and wearing mixed fabrics (and all the other ridiculous laws in Leviticus). Then, I will believe this nonsense about their religious beliefs (not really). Until then, they need to shut up and mind their own business!

    • Posted February 9, 2015 at 9:53 am | Permalink

      Maria – exactly. Ditto for NT admonitions re such things as divorce and remarriage = adultery – and we know what the OT says should happen to adulterers!!

      • Maria
        Posted February 9, 2015 at 10:02 am | Permalink

        Douglas — Wonder if anyone works on the Sabbath in Alabama. And if they do, is it Saturday or Sunday?

        We could go on and on!

        • gravelinspector-Aidan
          Posted February 9, 2015 at 4:37 pm | Permalink

          And if they do, is it Saturday or Sunday?

          Inclusive OR, or exclusive Or?

    • Posted February 9, 2015 at 10:21 am | Permalink

      exactly. and all of this swearing in court on bibles when Jesus Christ himself said never to do this in the courts. It goes to show that many Christians just make up their religion to reflect them, not the other way around.

      • Posted February 9, 2015 at 11:21 am | Permalink

        Where does it says Jesus said not to do this? Could you give a link (or at least directions)?

        • Posted February 9, 2015 at 11:34 am | Permalink

          Not Jesus:

          James 5:12:

          But above all, my brothers, do not swear, either by heaven or by earth or by any other oath, but let your “yes” be yes and your “no” be no, so that you may not fall under condemnation.

          • Posted February 9, 2015 at 12:52 pm | Permalink

            Not Jesus, but it’s in the Bible, so God actually said it. (At least, that’s my understanding of how it works for Christians.)

            • Doug
              Posted February 9, 2015 at 4:32 pm | Permalink

              Jesus says the same thing in Matthew 5:33-37. Of course, Christians have come up with ways of explaining that Jesus didn’t really mean what the Bible quotes him as saying. Google “Jesus forbids swearing oaths” if you’re interested.

  13. Mark Russell
    Posted February 9, 2015 at 9:53 am | Permalink

    “Within a decade, gay marriage will be legal everywhere in my country”

    Or maybe in just a few months. SCOTUS will hear appeals from the 6th Circuit Court of Appeals (the only Circuit to uphold state gay-marriage bans thus far) this April and will most likely rule in June.

    As SCOTUS denied a request just this morning from Alabama for an extension of the stay of the federal ruling finding their marriage ban unconstitutional, it looks very promising that they will effectively strike down all gay marriage bans with their June ruling.

    As a gay person living in Georgia, I hope I am right.

  14. Posted February 9, 2015 at 10:08 am | Permalink

    Spotted this just a few minutes ago:

    http://news360.com/article/278004686

  15. bacopa
    Posted February 9, 2015 at 10:13 am | Permalink

    If the Fifth Circuit upholds the court decisions in TX and MS, and overturns the ruling in LA, we could have coast to coast marriage equality in a few weeks. And I am pretty sure that the Supremes would rule against the decision of the Sixth, so it should all be over by June.

  16. tomh
    Posted February 9, 2015 at 10:27 am | Permalink

    Thomas sees the handwriting on the wall, for in his dissent, while lecturing the Court, he predicts the eventual outcome.
    “…the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor. This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.”

    • Posted February 9, 2015 at 11:10 am | Permalink

      Thomas is happy to overturn the status quote when it suits his political views.

  17. John Crisp
    Posted February 9, 2015 at 10:44 am | Permalink

    Professor CK, I feel I need to defend the “Bronze Age”. They were pretty relaxed about same-sex activities.

  18. Posted February 9, 2015 at 10:52 am | Permalink

    Alabama Chief Justice Roy Moore

    Trying hard to be the #LastBigotStanding

  19. Posted February 9, 2015 at 11:01 am | Permalink

    Alabama will have to bite the bullet and allow gay couples to get married. Judge Moore knows this, too, so why his dumb order? I suspect it’s because, like the Ten Commandments affair, it’s a way to build popularity with his constituents

    I suspect it’s because it’s a sacred value to him, which he will pursue regardless of the consequences. This is the way that many jihadists feel about acts of violence: the consequences are irrelevant.

  20. Posted February 9, 2015 at 11:01 am | Permalink

    “Traditional marriage then, traditional marriage now, traditional marriage forevah!”

    It’s always the last gasp before the drowning regime goes down for the third time.

    • Heather Hastie
      Posted February 9, 2015 at 1:35 pm | Permalink

      Maybe I didn’t read the same Bible as the bigots – as a kid I always thought traditional marriage meant polygamy, and I never quite worked out why the Church was so against it when everyone in the Bible did it. Not that I’m an advocate of polygamy, I just never got the Churches’ position.

      • Doug
        Posted February 9, 2015 at 4:24 pm | Permalink

        The New Testament says that Church leaders must be “the husband of but one wife” (1 Timothy 3:2). This applies to Church leaders, not to everyone, but I assume that this is where it started.

        • Heather Hastie
          Posted February 9, 2015 at 9:42 pm | Permalink

          Thanks – I truly didn’t know. Interesting.

  21. Posted February 9, 2015 at 11:09 am | Permalink

    It was not immediately clear how the state’s 68 probate judges, who, like Chief Justice Moore, are popularly elected, would respond to the order.

    I hate to admit it, but I find this exhilarating. This may come down to a game of chicken between the Federal government and the State; in the end, the National Guard had to be called for Alabama and, I think, Mississippi.

    • tomh
      Posted February 9, 2015 at 11:15 am | Permalink

      Most judges don’t seem too concerned with Moore’s order and are issuing licenses. “After marrying a gay couple in Birmingham, a judge asked for a picture with them.” Great picture.

      • Posted February 9, 2015 at 11:30 am | Permalink

        “Most judges don’t seem too concerned with Moore’s order and are issuing licenses.”

        Well, that does restore some faith in humanity.

      • darrelle
        Posted February 9, 2015 at 12:11 pm | Permalink

        Right on judge.

      • Heather Hastie
        Posted February 9, 2015 at 1:36 pm | Permalink

        Very cool indeed. Good on him!

      • Ken
        Posted February 9, 2015 at 9:28 pm | Permalink

        They’re following Moore’s order exactly. “No license inconsistent with the Alabama Constitution or state law” no longer refers to same-sex marriages, as the Federal District Court has ruled, and as the Supreme Court has refused to stay.

  22. Posted February 9, 2015 at 11:49 am | Permalink

    How does this play out? What happens if this guy just digs in his heels?

  23. E.A. Blair
    Posted February 9, 2015 at 12:27 pm | Permalink

    Since Judge Moore is a Republican, he can’t possibly be an “activist” judge, could he?

  24. Ed Stephenson
    Posted February 9, 2015 at 1:52 pm | Permalink

    Writing from Alabama I feel compelled to point out that the situation is somewhat more nuanced than Jerry’s post makes it out to be. Not all of us are Bronze Agists, just as not all Chicagoans are living in the 21st century. On a state by state basis the ratio of rational vs irrational people is a continuum – not as high in Alabama (or any state) as one would like, but not zero anywhere. Some probate judges here are ignoring Moore and issuing licenses to same-sex couples anyhow and marriages have taken place. History marches onward and Moore (and our governor, another evangelical who supports Moore) will find themselves on the wrong side of it, just as George Wallace did.

  25. Gordon Hill
    Posted February 9, 2015 at 3:12 pm | Permalink

    Roy Moore is more concerned with publicity than the law.

  26. jerbearinsantafe
    Posted February 9, 2015 at 4:45 pm | Permalink

    Reblogged this on Fairy JerBear's Queer World News, Views & More From The City Different – Santa Fe, NM and commented:
    Not so sweet home Alabama if your LGBTQ and looking to get married, at least as far as the state’s supreme court justice is concerned…


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