The final battleground.

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Alabama's Gay-Marriage Showdown

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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An outright confrontation between the state of Alabama and the U.S. Supreme Court on the question of gay marriage has come two steps closer in the past 24 hours. Last night, Roy Moore, the renegade Alabama chief justice, ordered the state probate judges who supervise all marriages to deny licenses to same-sex couples. This morning, the U.S. Supreme Court refused to grant a stay that would have delayed a direct conflict between Moore's order and that of the federal district court that has declared Alabama's prohibition of gay marriage unconstitutional. As of now, a federal court order effectively requires Alabama judges to issue marriage licenses -- while the chief justice of the state Supreme Court has ordered them not to do it.

The good news is that at least some Alabama probate judges have enough common sense to ignore Moore’s order and follow the U.S. Constitution as interpreted by the federal district court. Even as a matter of Alabama law, it's unclear that Moore has the official authority to order the probate judges to obey his interpretation of the Constitution rather than the federal court’s.

The bad news is that other state probate judges appear to be listening to Moore, and were not issuing licenses as of this morning. The only way to get married in Alabama is to get a license from a probate judge or a county clerk who answers to a probate judge. That means Moore is actively -- and in part, effectively -- standing in the way of the implementation of the federal court’s order.

Is Moore justified as a legal matter? The answer, I believe, is no -- but the no is complicated. As I explained when Moore first expressed his opinion in a letter to Alabama's governor, Moore's position is based on the view, widely shared by state supreme courts and many law professors, that state courts aren't bound by interpretations of federal law or the Constitution that are issued by U.S. district courts or U.S. courts of appeal. According to this view, which the Supreme Court has never officially adopted or denied, only decisions of the U.S. Supreme Court about federal law or the Constitution are binding on the state courts, because only the Supreme Court reviews state court judgments directly.

Even if this view is accepted, it doesn't and shouldn't apply to the Alabama probate judges under these circumstances. The logic of the state courts as independent interpreters of the Constitution only makes sense where an independent case is before them. Here, there's no challenge to Alabama's marriage law before the state probate courts.

Instead, the federal district court in ruling the state's marriage law unconstitutional has effectively ordered the state’s officials to issue marriage licenses. The probate judges are simply functionaries of the state when it comes to issuing the licenses. They should therefore be bound by the federal district court’s order, which applies specifically to their function. Failure to obey would amount to a form of legal contempt.

The U.S. Supreme Court could have headed off this confrontation by granting a request for a stay of the district court's order sought by the state of Alabama. Twice in the last year -- most recently, six months ago -- the court granted stays of similar orders. But in October, the court changed course, and stopped granting stays. This morning's decision to deny a stay follows that trend.

Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented from today’s denial. He argued that the stay denials in October were issued before the Supreme Court had agreed to hear the same-sex-marriage issue itself this year. Thomas reasoned that because the court has granted certiorari, the stay should be granted because Alabama is now in a better position to win its case eventually.

Thomas's reasoning is a little bit convoluted, but it shows that the court could conceivably have granted the stay if it had wanted to avoid confrontation with Moore.

Indeed, the court may have been motivated to deny the stay at least in part by the desire to signal to Moore that it's unhappy with his shenanigans. Admittedly, the court would probably have denied the stay anyway. But by directly confronting the Supreme Court's authority, Moore may have guaranteed that Justice Anthony Kennedy would vote against any stay, because it would look like judicial weakness.

Thomas made an indirect reference to Kennedy in his dissent. He criticized the court for slighting Alabama's interests and acquiescing in the district court’s decision to “cast aside state laws without making any effort to preserve the status quo.” Then he said that “this acquiescence may well be seen as a signal of the Court’s intended resolution of that question.” This amounted to a prediction that Kennedy would provide the fifth vote to establish a constitutional right to gay marriage when the case is decided this June.

If and when that happens, even Roy Moore’s theory of state court resistance would be definitively repudiated. Until then, at least some Alabama judges are challenging the authority of the federal courts.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

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