The Supreme Court is less than four weeks away from issuing a ruling in the same-sex marriage cases and the U.S. District Court recently ruled that if they uphold marriage equality, all probate judges in Alabama must comply with that ruling. Liberty Counsel, Jerry Falwell’s legal group, is asking the Alabama Supreme Court to reaffirm its refusal to comply with any federal court order they disagree with.
Today Liberty Counsel filed a motion asking the Alabama Supreme Court for an order clarifying and affirming the continued effectiveness and binding nature of the Court’s orders upholding and enforcing Alabama’s marriage laws.
On May 21, federal Judge Callie Granade ruled that all probate judges in Alabama’s 67 counties are obligated to issue marriage licenses to same-sex couples. This ruling by the U.S. District Court for the Southern District of Alabama purported to overrule the Supreme Court of Alabama’s March 3 mandamus decision that affirmed natural marriage and ordered all Alabama probate judges to immediately stop issuing illegal marriage licenses to same-sex couples.
“Judge Granade has no more power to overrule the Alabama Supreme Court than she does to rewrite same-sex ‘marriage’ into the U.S. Constitution,” said Mat Staver, founder and chairman of Liberty Counsel. Staver continued, “The Alabama Supreme Court’s prior mandamus Order, and perhaps its disposition of this motion, should send a message that any ruling by Judge Granade or even the United States Supreme Court inventing a right to same-sex ‘marriage’ under the U.S. Constitution is illegitimate,” Staver added.
This is called nullification. It was the concept that Martin Luther King was referring to in his famous I Have a Dream speech. It holds that the federal courts have no jurisdiction over the states at all. This flies directly in the face of the 14th Amendment and takes a position that even Clarence Thomas, the most reactionary Supreme Court justice, does not take. It’s the same argument that George Wallace made when he tried to prevent the Supreme Court’s desegregation rulings from being enforced. He found out quickly that he was wrong.
It can’t be emphasized too strongly just how reactionary this position is. It would cancel out all desegregation rulings, reestablish state laws banning interracial marriage. Its roots are entirely found in racist ideology. What Liberty Counsel is demanding is that the clock be turned back a century and a half. For all practical purposes, Mat Staver and Liberty Counsel just donned their white hoods.