AL Supreme Court Sets Up Big Showdown With Fed. Courts

The Alabama Supreme Court, by an 8-1 vote, ratified the nullificationist position held by Chief Justice Roy Moore and ordered county judges in that state to stop issuing same-sex marriage licenses. That can only create more chaos in the state on many levels on this issue.

Weeks after a United States District Court judge in Mobile ordered a probate judge there to issue same-sex marriage licenses, the Alabama Supreme Court has ordered a halt to same-sex marriages in the state.

“As it has done for approximately two centuries, Alabama law allows for ‘marriage’ between only one man and one woman,” the order said. “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.”…

The court seemed to chide Alabama Attorney General Luther Strange for not taking a more active role in enforcing state law.

“In the wake of the federal district court’s orders, Attorney General Strange has refrained from fulfilling what would otherwise have been his customary role of providing advice and guidance to public officials, including probate judges, as to whether or how their duties under the law may have been altered by the federal district court’s decision,” the court wrote.

The order gives probate judges five days to submit responses if they want to show cause why they should be able to grant marriage licenses to same-sex couples.

The order also gives Mobile County Probate Judge Don Davis until Thursday to argue why he should not be bound by the order. Davis has asked the court to dismiss him from the lawsuit because he had been ordered by the federal district court to issue licenses to same-sex couples.

There’s some odd procedural questions here. The federal court that declared the state law to be unconstitutional has only actually ordered one single judge, Davis, to issue same-sex marriage licenses. But most counties in the states have been issuing them, after some initial reluctance, after the appeals court and the Supreme Court refused to issue a stay of the original ruling.

What this does is put county probate judges in the state in a position of having to choose which court to obey. It also sets up a bunch of legal wrangling over the next few months. I’m sure a petition will be filed with the federal district court asking, in essence, “Okay, what now?” Whatever that decision is, it will be appealed. And by the time all that is done, the Supreme Court will rule on the case before them now and settle the matter once and for all.

The Alabama Supreme Court has a tiny legal thread to hold on to now because the federal court has not directly ordered any county other than Mobile county to issue the licenses, but once the Supreme Court rules they’ll have nothing but pure nullification and interposition to rely on. And that has never worked before. If the Alabama Supreme Court continues to defy the ruling then, there’s going to be a major showdown. Full ruling here.

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  • llewelly

    I’m convinced Roy’s goal has been a major showdown from the beginning. That’s his marketing move. He’s converting state funds into advertising.

  • raven

    What this does is put county probate judges in the state in a position of having to choose which court to obey.

    No problem. It’s so obvious!!!

    Nullification.

    We now know that courts can just make up whatever laws they want. And ignore whatever laws they want.

    Including probate courts. They can just, you know, nullify the Alabama Supreme Court ruling.

  • whheydt

    From what I’ve been reading, the ALSC *specifically* ordered the Probate Judge in Mobile to stop issuing SSM licenses. That’s the judge the Federal District Judge specifically ordered to issue them. He’s got a problem.

    Also…interesting enough, Moore appears to have recused himself. He didn’t sign the decision, nor did he dissent. Whatever he’s up to, it only makes things murkier.

    What I expect to happen is for the district judge to get out–or be asked to get out–a clue-by-4 and wallop these guys up side of the head to get their attention. Does anyone know if a state supreme court justice has ever gotten a “show cause” order from a federal district judge? Has any such person ever been held in contempt? How about thrown in jail for contempt?

  • raven

    Has any such person ever been held in contempt? How about thrown in jail for contempt?

    Yes!!! I hold the entire Alabama Supreme Court minus 1 in utter contempt.

    I’m not sure the feds have to go that far.

    They should just nullify the Alabama Supreme Court ruling and tell everyone it is obviously illegal and not to pay any attention.

    You don’t want to make them martyrs. They want to be…martyrs.

    This is all just a game, polical theater. But it can get out of hand. IIRC, not too long ago, they decided to nullify the US constitution and form the Confederacy. 5 years later, a million people were dead. I really hope we don’t end up nuking Birmingham or Mobile.

  • screechymonkey

    raven @4,

    I’m fine with letting them be martyrs, from the inside of a jail cell.

  • John Pieret

    Okay, I have obviously not been able to fully analyze a 148 page decision that I only found out about late at night (damn insomnia!). But a quick skim with a lawyer’s eye leads me to believe that this has been in the works for much longer than the couple of weeks this case has been pending before the Alabama Supreme Court. Much of the decision deals with the technical issues of the petitioners’ standing and the court’s jurisdiction to hear the case, all of which can be ignored.

    When it gets to the “meat” of the matter, it is actually better argued than the 6th Circuit’s decision upholding SSM bans. It does poke some (at least small) holes in the logic of the arguments used in favor of SSM, particularly those that rely on applying “heightened scrutiny” or “strict scrutiny” as the constitutional test of these bans. While my impression is that the decision still fails to make its case on those points, the depth and breath of the arguments are impressive and were not cobbled together in a few days.

    Where it fails rather badly, as in all these cases, is as to the “rational basis” test. It gives all the usual suspects for why marriage is good for heterosexual couples: “think of the children;” “we want heterosexuals to fuck in stable relationships;” etc., etc. But when it gets to the question “And if SSM is allowed, how does that rationally change those objectives (the technical legal question: “Is the law narrowly framed to achieve its purported goals?”) the best the court can do is this:

    Redefining marriage by definition implies that the traditional definition is inaccurate. In point of fact, we are concerned here with two different, mutually exclusive definitions. One that marriage is only between a man and a woman, and one that does not include this limitation. Both definitions cannot be true at the same time. Insisting that the law must legitimize one definition necessarily delegitimizes the other.

    Say what? How are they “mutually exclusive”? If SSM is allowed, straights can no longer get married? How does SSM “delegitimize” straight marriages? Or does SSM just “delegitimize” the favored definition of “marriage” of the majority, who had so much animus towards gays that they not only passed laws against SSM through the legislature but also through a popular initiative, even though Alabama’s laws already did not recognize SSM and there was no pending case or serious movement within the state to overturn that status?

    They can run, but they can’t hide their bigotry.

  • eric

    Thanks for that analysis John P. Sounds like they are trying to argue this:

    1. Marriage is good

    2. We have a definition of marriage

    3. Since marriage is good, the current definition must be good, and so any change to that definition would be bad.

    Fails on at least two counts: fails to recognize that it is possible to improve good things (not all change is bad), and fails to recognize that specifically in this case, the new definition includes/subsumes the old one.

    I imagine two versions of a Venn diagram, one in which “old marriage” is a circle contained within the larger “new marriage” circle, another in which they partially but not completely overlap. The Alabama argument depends on people mistakingly thinking the latter venn diagram is accurate (and so some of the ‘good stuff’ of the old version will be lost), when in fact the former diagram is the accurate one.

  • Chiroptera

    Well, so much for the clause in the Alabama state constitution that explicitly gives US law and the US Constitution precedent over Alabama law, I guess.

    Well, except, I suppose, that the mass delusions of US conservatism are the only legitimate source of US Constitutional interpretation, as opposed to, say, the liberal activist federal judges.

  • Reginald Selkirk

    Redefining marriage by definition implies that the traditional definition is inaccurate.

    Whaaaaat? It could also mean that the traditional definition is arbitrary. Poor mastery of language skills.

  • grumpyoldfart

    Most campaigns of this sort are funded by the various lobby groups. I wonder where the cash ended up this time?

  • U Frood

    Remember, judge Moore said he gave his order to prevent confusion!

  • sqlrob

    And by the time all that is done, the Supreme Court will rule on the case before them now and settle the matter once and for all.

    You mean like Roe v. Wade settled the abortion issue once and for all? You’re more optimistic than I am Ed.

  • raven

    Whaaaaat? It could also mean that the traditional definition is arbitrary.

    It’s gibberish.

    1. It could mean that the traditional definition is incomplete.

    2. What is so good about traditonal definitions anyway? Traditionally, in Alabama blacks were defined as 3/5 of a person and property of whites.

    There is nothing inherently good about “tradition”. Many have died out. Many more deserve to follow them.

    3. It’s a common lie. Traditional biblical marriage is polygamy + sex slaves. You can have all the wives you can round up and all the sex slaves you can afford. Solomon had 700 wives and 300 sex slaves and was widely admired for it.

  • Artor

    Raven @ 4

    Well, as you know Obama already tried to nuke Charleston, so it wouldn’t be too surprising if he decided to nuke Birmingham instead.

    http://redicecreations.com/article.php?id=27901

  • hunter

    Actually, there is direct Supreme Court precedent on this, Ableman v. Booth (1859), which held that state courts cannot overrule a federal court decision.

    This order is pure grandstanding.

  • raven

    What is so good about tradition? Nothing in itself.

    IIRC, Kipling??? had a story about tradition.

    In India, they used to burn widows alive on the funeral pyres of their husbands, setee. Old women past child bearing were burdens on the community. The Indians defended this correctly as “tradition”.

    The British hero told them they also had a tradition in the UK. If men killed defenseless widows for being widows, they put a rope around their neck. And hung them from a tree until they were dead.

  • John Pieret

    Here is Lyle Denniston’s initial impression of the ruling at SCOTUSblog:

    http://www.scotusblog.com/2015/03/criticizing-justices-state-court-bars-same-sex-marriages/

    The majority opinion canvassed all of the arguments that other courts have used in nullifying state bans on same-sex marriage, and rejected each of them. When it turned to analyzing the Supreme Court’s Windsor decision, it said the last remaining argument that could be used to support a right to same-sex marriage was the “dignity” rationale that was stressed by Justice Anthony M. Kennedy in Windsor.

    The state court majority used the technique of disputing the Mobile federal judge’s decision as a way to mount criticism of the Supreme Court. If none of the arguments used by the federal judge support same-sex marriage as a newly defined right, the state court said, that leaves only the “dignity” concept “that comes from” the Supreme Court’s Windsor decision.

    There is no “equal dignity” provision in the Constitution, the main state opinion said. “Instead,” it added, “what this notion appears to be is a legal proxy for invalidating laws federal judges do not like, even though no actual constitutional infirmity exists.”

    Suggesting that the Court’s Windsor decision essentially “adopts the new definition of marriage,” the state court commented that this notion “necessarily makes a moral judgment about adult sexual relationships….Because the notion is not contained in the Constitution, one may question whether it is nothing more than intuition.”

    That was actually part and parcel of an argument that it is constitutionally acceptable that religious and moral arguments (specifically mentioning Christian and Jewish religious beliefs) against SSM were the motivations of the new bans against SSM … sort of “Oh, yeah? Well, you’re doing it too” argument. But there is no question that they were attacking Justice Kennedy which, I suspect, will do nothing but stiffen his resolve in SSM cases.

    SCOTUSblog will, no doubt, have a number of follow-up posts on this case.

  • a_ray_in_dilbert_space

    Where’s General William T. Sherman when you need him?

  • whheydt

    There has been some commentary around the idea that marriage law is strictly a state matter over which the Federal courts have no say. To that, I have the urge to say…”What about Loving v. Virginia?”

  • eric

    Raven @16: the quote you’re thinking of is from (or is attributed to) Sir Charles Napier, Britain’s Commander-in-Chief of the Army in India in the early 1800s. The full quote goes: “You say that it is your custom to burn widows. Very well. We also have a custom: When men burn a woman alive, we tie a rope around their necks, and we hang them. Build your funeral pyre; beside it, my carpenters will build a gallows. You may follow your custom. And then we will follow ours.”

    It could certainly be adopted here by the Feds. Alabama has a law forbidding judges from issuing SSM licences? The federal government has a law about that too, and about what happens to judges who practice unconstitutioal discrimination. You follow your law, and then we will follow ours.

  • abb3w

    @2, raven

    From what I’ve been reading, the ALSC *specifically* ordered the Probate Judge in Mobile to stop issuing SSM licenses. That’s the judge the Federal District Judge specifically ordered to issue them. He’s got a problem.

    Worse yet, it looks like the ruling orders him to stop issuing such licenses other than the four directly enjoined to be issued by the federal court case order, and the SCOAL is asking why any others are being issued… apparently ignoring the most recent points of what the (latest? February 12, anyway) preliminary federal injunction orders and declares — namely, that “ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment“. Or perhaps not so much ignoring, as saying “we don’t have to give a fuck”, since it looks like they’re arguing (p 73) that only the Supreme Court of the United States has to be taken seriously by state courts. (They at least quote some SCOTUS concurrences which might support the thesis — albeit not the majority rulings, additionally seeming from dubious context, and furthermore from Justices Rhenquist and Thomas. Contrariwise, Thomas is the SCOTUS justice in charge of dealing with the 11th Circuit.)

    Nohow, they seem to have been careful not to directly contradict what the federal order enjoins, suggesting this might merely be political grandstanding of epic and asinine scale and scope.

  • theguy

    “As it has done for approximately two centuries, Alabama law allows for ‘marriage’ between only one man and one woman”

    …Of the same race. Cousins okay.