Same Sex Marriage in Alabama - Showing Respect

A few days ago when last I posted on this topic Chief Justice Ray Moore stood in the courthouse door barring entry to same sex couples seeking marriage licenses. He had ordered Probate Judges across the state to disobey the federal court order striking down the Alabama constitutional provisions and statutes that prohibited same sex marriage. The Chief Justice did not purport to issue an injunction, nor did he propose to punish errant Probate Judges who might choose to obey the order of the District Court. Instead he called upon the governor of the state to enforce the law, presumably by taking some unspecified action against such judges. What happened? And what happens now?


At 8:15 am on Monday, February 9, the Supreme Court of the United States issued a one sentence order denying the request of the Alabama Attorney General for a stay of the District Court order while the Supreme Court ponders the constitutionality of state laws banning same sex marriage. The wording of the order is illuminating:

"The application for stay presented to JUSTICE THOMAS and referred by him to the Court is denied."

Is this not in itself revealing? Justice Thomas could have issued the stay -- he had it in his hands to delay once more the entry of same sex couples into the institution of marriage in the state of Alabama -- but he chose instead to refer the matter to the entire Court. He then attached a blistering dissent (joined by Justice Scalia) in which he concluded:

"I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question."

And taking only the state of the litigation into account Justice Thomas was entirely correct. Normally, almost invariably in fact, orders changing the law in significant ways are stayed while those orders are on appeal. The District Court order revolutionizes the law of Alabama -- it strikes down a popularly-adopted state constitutional amendment and alters state law defining the institution of marriage. One might rationally conclude that a stay on appeal was not only appropriate but well nigh mandatory.

But of course there was more to this case than a change to Alabama law. There was also Chief Justice Moore's order to the Probate Judges demanding that they disobey the order of the District Court. What did the justices of the Supreme Court of the United States think of that? They did not reveal their thoughts in their one-sentence denial of the stay, nor did Justice Thomas refer to Justice Moore's attempted resurrection of the theories of interposition and nullification. I can only imagine -- I can only project my thoughts onto the seven justices who denied the stay. And those thoughts would have included the reminder that "This Constitution ... is the supreme law of the land, and the judges of every state shall be bound thereby...."

And while Justice Thomas is entirely correct that it is necessary to show "the people of Alabama the respect they deserve," it is also necessary to remember that the people of Alabama include gay and lesbian couples who wish to marry, and that they as well must be shown respect. All people deserve respect. That is what Due Process requires. That is what Equal Protection enshrines. Let us not forget that.

Monday morning at 9:00 some Alabama Probate Courts opened for business and began issuing marriage licenses to same sex couples ... Tori Sisson and Shante Wolfe were the first. Other courts either did not issue marriage licenses to same sex couples or did not issue them at all.

Governor Bentley passed up Justice Moore's implied invitation to punish Probate Judges who issued marriage licenses to same sex couples in violation of Alabama law. In his statement issued Monday he bemoaned the refusal of the federal courts to stay the District Court's order, but the Governor declared that he would take no action at all against any Probate Judge ... apparently no matter what that Probate Judge decided to do:

I will not take any action against Probate Judges, which would only serve to further complicate this issue.

To his great credit Governor Bentley reaffirmed his administration's commitment to the Rule of Law:

We will follow the rule of law in Alabama, and allow the issue of same sex marriage to be worked out through the proper legal channels.

The original District Court order was directed to the state Attorney General, not the Probate Judges. If a probate judge chose not to voluntarily comply with the original court order it was necessary to file another suit naming that judge as a defendant. That was done in Mobile County, and after a hearing on Thursday the District Court issued an order to Mobile County Probate Judge Don Davis to begin issuing marriage licenses to same sex couples.

What will happen today? According to Russ Corey, Still no go for gays in Shoals Times Daily (2/13/`5) the Probate Judges in several counties were reviewing the latest court order to Judge Davis and would decide what to do this morning.

Well, tomorrow is Valentine's Day, folks! And Spring is not only in the air, it is in our step! Love springs eternal, and for that we can be eternally grateful!