The Alabama Supreme Court is still considering whether or not to spark a constitutional crisis by ordering state officials to ignore the Supreme Court’s ruling requiring states to recognize and legalize same-sex marriages. Mat Staver, the dumbest lawyer in America not named Larry Klayman, has filed a brief demanding that they do exactly that.
Asked by the Alabama Supreme Court for advice on what to do next on same-sex marriage, two conservative advocacy groups in the state have urged both direct and indirect resistance to the Supreme Court’s ruling mandating a constitutional right for gays and lesbians to wed. The state court, the groups argued, has the constitutional power to refuse even to accept what the Justices have done, and has a constitutional duty to insulate state officials from legal risk if they do not obey the decision based on a religious objection.
The thirty-three-page brief was filed on Monday by the Alabama Policy Institution, a think tank, and by the Alabama Citizens Action Program, an inter-denominational church support group, which earlier had persuaded the state’s highest court to block all of the state’s sixty-eight probate judges from issuing any marriage licenses to same-sex couples, even though all of them were under an order to do so by a federal judge in Mobile. Depending on what the state court now does, it could set up a new federal-state collision that potentially could go to the Supreme Court. Lower federal courts could take direct action against state trial court judges, but only the Supreme Court could review a decision by the Alabama Supreme Court on a federal constitutional issue.
But the two organization leading the challenge before the state court used a combination of arguments — points made by the dissenting Justices in the Obergefell decision on the errors they found in the majority ruling, the protests of the Rev. Martin Luther King, Jr., against “unjust laws,” and a series of Wisconsin Supreme Court rulings defying the Supreme Court in a mid-nineteenth-century runaway slave case — to persuade the state judges to treat the Obergefell ruling as not binding on them.
Aside from reciting at length from the Obergefell dissenters, the brief was focused heavily on the back-and-forth decisions of Wisconsin’s highest state court and the Supreme Court, over the power of a state court to order the release of an abolitionist, Sherman M. Booth, from federal custody on charges related to his role in arranging the freedom of a runway slave from Missouri. The slave was never recaptured, but the Supreme Court, in the unanimous decision in Ableman v. Booth, ruled that the state court had no power to interfere with the prosecution of Booth.
The Alabama groups’ brief noted that the state supreme court refused to accept the Supreme Court’s decision: “In the nearly 157 years since the U.S. Supreme Court’s purported reversal [of two state court rulings], the Wisconsin Supreme Court has never filed or accepted the U.S. Supreme Court’s mandates.” What the state court did, the brief asserted, was done “in fidelity to the U.S. Constitution.”
Yes, they had to go back to 1854 to find a case in which a state Supreme Court defied the U.S. Supreme Court and it was in a case involving runaway slaves, which has nothing at all to do with the current situation. There is, of course, a far more obvious and accurate comparison involving a state refusing to follow a federal court order that required them to recognize someone’s equal rights: George Wallace refusing to follow the court’s desegregation orders, using virtually identical arguments to the ones Staver uses now. But they don’t want to make that accurate comparison, for obvious reasons, so they had to go back another century to find a totally different case to justify their position.
By the way, the Wallace situation did not end well for the state of Alabama. And it will not end well for them if they attempt yet again to defy the Supreme Court.