The Rebirth of Nullification in Alabama

The Rebirth of Nullification in Alabama February 18, 2015

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The week after I spoke in Alabama, there was a happy milestone in this reddest of red states: a federal court ruling for marriage equality was set to take effect. Judge Callie V.S. Granade, a George W. Bush appointee, struck down a state ban on same-sex marriage, and the state’s request for a stay was denied by both the appeals court and the Supreme Court.

But at the eleventh hour, there was a shocker: Alabama state supreme court chief justice Roy Moore issued an order directing state probate courts, which issue marriage licenses, to ignore the decision:

“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.

But Moore went much further than that, according to a letter to Gov. Robert Bentley posted by the Southern Poverty Law Center:

As you know, nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage… The laws of this state have always recognized the Biblical admonition stated by our Lord… Today the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution… I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority.

There was never any question that this was a blatantly illegal order. State courts can’t overrule federal courts; to do so would throw hundreds of years of constitutional precedent up in the air. Besides, the Alabama state court had no standing to intervene; there was no case before them where they had been asked to issue a ruling. And besides that, Moore is just one judge, not the entire court. He acted unilaterally, in a case he wasn’t involved in, without consulting his fellow judges before issuing a decree!

This brazen contempt for the law he’s supposed to uphold fits the pattern for Roy Moore, whose name atheists ought to recognize. He’s the Christian supremacist who infamously put a Ten Commandments monument in the state judicial rotunda in 2003 on his own initiative, defied a higher court’s order to remove it, and was kicked out of office for his insubordination. But he staged a comeback, running for the same office he was fired from, and won. (This is another good reason why judgeships shouldn’t be elected positions – and we can only hope that some more permanent sanction will be imposed on him this time for this latest act of contempt for the legal system.)

Despite his lack of authority and blatant violation of the judicial process, Moore’s order threw probate courts around the state into chaos. Some ignored Moore, compiled with the federal ruling, and began issuing marriage licenses to all comers. Some ducked the controversy by closing down so that they wouldn’t have to issue any marriage licenses to anyone. And some stayed open but illegally refused to issue marriage licenses to same-sex couples, either out of a mistaken belief that Moore’s decree was relevant, or, more likely, using that decree as a fig-leaf excuse for what they wanted to do anyway.

This state of affairs didn’t last long: Judge Granade issued an order to the probate court in Mobile, the biggest jurisdiction that wasn’t in compliance, which grudgingly obeyed. Most Alabama probate courts, seeing the writing on the wall, have begun issuing marriage licenses, though there are still a few holdouts.

The claim that a state official can countermand a federal law or court ruling they disagree with is called nullification. It’s a doctrine with a long and ugly history. Throughout American history, it’s been the tool of choice for bigots and reactionaries who sought to defend racist legal schemes against the push for civil rights coming from above. The most infamous advocate of nullification was Alabama Governor George Wallace, who gave a fiery speech vowing to resist the end of racial segregation. In it, Wallace repeatedly appealed to God and Christianity to claim that he represented a higher law than the Constitution. It’s striking just how much his rhetoric in 1963 sounds like Moore’s rhetoric in 2015:

In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation now, segregation tomorrow, segregation forever!

…We are faced with an idea that if a centralized government assumes enough power, enough authority over its people, that it can provide a utopian life… we find we have replaced faith with fear, and though we may give lip service to the Almighty, in reality, government has become our god. It is, therefore, a basically ungodly government and its appeal to the pseudo-intellectual and the politician is to change their status from servant of the people to master of the people, to play at being God, without faith in God and without the wisdom of God. It is a system that is the very opposite of Christ for it feeds and encourages everything degenerate and base in our people…

…We intend to renew our faith as God-fearing men – not government-fearing men nor any other kind of fearing-men.

Needless to say, the National Guard turned out to be more powerful than Wallace’s Jim Crow Jesus. But while the taint of this history ought to consign nullification to permanent ignominy, that hasn’t happened. Incredibly, in the last few years, nullificationist rhetoric has made a comeback. Roy Moore is just the latest in a line of Republican politicians who threaten secession or rebellion because they’re not getting their way on gay rights, immigration, or health care. They do this without a trace of shame or even awareness that they’re treading in the footsteps of their openly racist predecessors.

Image: A 1959 protest against school desegregation in Little Rock, Arkansas. One of the signs reads, “Stop the Race Mixing March of the Anti-Christ”. Public domain, via Wikimedia Commons.

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