Alabama standoff over same-sex marriage channels George Wallace

Same-sex marriages went forward Monday in Alabama, for the most part, notwithstanding an effort by the Chief Justice of the state’s Supreme Court to prevent probate judges from issuing marriage licenses to same-sex couples:

BIRMINGHAM, Ala. — Amid conflicting signals from federal courts and the chief justice of Alabama’s Supreme Court, some Alabama counties began granting marriage licenses to same-sex couples on Monday in a legal showdown with echoes of the battles over desegregation in the 1960s.

In major county seats like Birmingham, Montgomery and Huntsville, gay couples lined up outside courthouses as they opened, and emerged smiling, licenses in hand, after being wed by clerks or by the judges themselves.

At the Jefferson County Courthouse here, Judge Michael G. Graffeo of Circuit Court officiated, at times tearfully, at the civil wedding of Dinah McCaryer and Olanda Smith, the first to emerge from the crowd of same-sex couples who lined up Monday morning. “I now pronounce Olanda and Dinah are married spouses, entitled to all rights and privileges, as well as all responsibilities, afforded and placed upon them by the State of Alabama,” Judge Graffeo said.

But in the small town of Troy, all was quiet at the Pike County Courthouse, where Judge Wes Allen of Probate Court, like his counterparts in some other counties, had decided that rather than issue licenses to same-sex couples, he would not grant marriage licenses to anyone. “We don’t have any appointments, and we have a sign up saying that we aren’t issuing any licenses at this time,” he said.

This morning’s events came in the wake of an order issued late Sunday night by Alabama Supreme Court Chief Justice Roy Moore who, as Steven Taylor has previously noted, has reacted to the recent federal court rulings on Alabama’s ban on same-sex marriage, in which Moore purported to order all of Alabama’s probate judges, who are responsible for issuing marriage licenses in the state, to ignore the federal court order:

On Sunday night, the state’s chief justice, Roy S. Moore, sent an order to county Probate Court judges, telling them not to issue the licenses, in defiance of a Federal District Court ruling that is being appealed by the state. But on Monday morning, the United States Supreme Court refused to stay the District Court order pending the outcome of that appeal.

Chief Justice Moore’s position on the balance of federal and state power has deep resonance in a region with a history of claiming states’ rights in opposition to the federal government, and in a state where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.

In his order to probate judges, Justice Moore cited the state constitutional amendment prohibiting gay marriage, approved by 81 percent of voters in 2006, and said that he, as chief administrator of the state courts, has authority over the probate courts. In interviews, he has argued that the state courts are not bound by the federal court’s order; in 2003, he refused to obey a federal court order to remove a Ten Commandments monument he had installed in the rotunda of the Alabama Judicial Building in Montgomery, though it was moved over his objections.

Although much has changed from Wallace’s era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that in the same-sex marriage case, the federal judge, Callie V. Granade, an appointee of President George W. Bush, had instigated a grave breach of law. The result has been a legal and cultural debate rife with overtones of history, religion and a chronically bubbling mistrust of the federal government, playing out at Alabama’s courthouses.

Additionally, the United States Supreme Court declined to stay the federal court’s ruling with respect to the Alabama law, a move that many are seeing as a sign of how this issue will ultimately be decided by the justices later this term. In any case, though, Moore’s position here is as much nonsense as his position regarding the Ten Commandments monument that led to his dismissal from the bench more than 10 years ago. In this case, the federal judge’s order and finding have not been overturned on appeal and have not been stayed by either the 11th Circuit Court of Appeals or the Supreme Court. The assertion that the state courts, or other state officers, such as those involved in the issuance of marriage licenses, are not bound by the federal court order is quite simply absurd. Unless and until that order is overturned or its effect stayed, it stands as the law of the land in the state of Alabama. Even if an individual probate judge was not a party to the lawsuit that resulted in the issuance of the original order, if they refuse to comply with it, then they can be brought before the court in a separate proceeding and the result will be exactly the same.

At this point, there is no difference between what Roy Moore is advocating here and what George Wallace did when he stood before a doorway at the University of Alabama in an effort to prevent African-Americans from enrolling in the school notwithstanding a federal court order that this must happen. In both cases, we have a politician, and make no mistake about it, Roy Moore is acting far more like a politician than a jurist here, who is appealing to outright bigotry and openly defying a federal court order. Ultimately, the Supremacy Clause tells us that the federal courts will win this dispute, but it’s rather obvious that Moore and others like him will exploit this matter as much as they can before it's over. Meanwhile, though, at least some of Alabama’s gay and lesbian citizens are able to take advantage of the equality under the law they are entitled to. Let’s hope it isn’t too long before that expands to the rest of the state.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.