Stop the celebrations in Alabama.

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Gay Marriage Has Alabama Near Revolt

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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Even though I’ve been warning about a mounting confrontation between the state of Alabama and the federal courts on gay marriage for the last month, I have to admit that I find the latest development pretty shocking. In a 134-page opinion, issued on the eve of the King v. Burwell argument when legal attention will be elsewhere, the Alabama Supreme Court has flatly ordered state probate judges not to issue marriage licenses despite a federal district court order making it clear they were obligated to do so.

The opinion not only asserts the state courts’ right to interpret the Constitution independent of the lower federal courts, but also lambastes the reasoning of the U.S. Supreme Court’s landmark same-sex-marriage opinion in U.S. v. Windsor as nothing more than a “legal proxy for invalidating laws that federal judges do not like.” Legally speaking, the Alabama Supreme Court is coming close to full revolt.

The background is detailed, but what you need to know now is that after federal district Judge Callie Granade invalidated the Alabama law restricting marriage to one man and one woman, elected Alabama Chief Justice Roy Moore advised defiance. Some state probate judges listened to Granade; others to Moore. Granade then ordered a specific Alabama probate judge named Don Davis to issue marriage licenses to same-sex couples. She made it clear that she was willing to issue similar orders to other probate judges if they resisted her order, too.

Davis listened to Granade -- he was, after all, under a direct injunction from a federal court -- and it seemed possible that other judges would follow suit. In fact, many did not. One judge, along with advocacy groups opposing gay marriage, went to the state Supreme Court and asked it to declare that the probate judges shouldn’t follow the federal court’s ruling. (Davis, hoping to avoid being given contrary orders by two different courts, asked to be exempted from the Alabama court’s judgment. The court agreed, but implied that Davis might be obligated to stop issuing all future licenses.)

Moore recused himself from the ruling by his own court, probably because he’s been burned in the past by resisting federal court orders. [1] The Alabama court, however, had no qualms. It voted 7-1 to instruct the state’s probate judges not to issue same sex marriage licenses.

The court’s reasoning is noteworthy in several ways. First, the court spent some 50 pages justifying its decision to take the case at all. Even though the court’s holding on its own standing is doubtful, it can’t be challenged in any court, because whether the Alabama court can hear a case is a matter of Alabama law on which the court’s word is final. A federal court reviewing this decision will have to take this aspect of the court’s decision on its own terms.

Then, the court explained why it could defy the federal district court: State courts have an independent right to interpret the Constitution differently from the lower federal courts. The Alabama court formally conceded that the U.S. Supreme Court could overrule it. But because the lower federal courts don’t directly review state court judgments, the state courts can’t be bound.

Many state courts and many legal scholars agree with this general view. But the Alabama court completely ignored a serious problem with applying the principle in this case. The probate courts aren’t making independent judgments about the meaning of the Constitution. They’re acting as functionaries (or in legalese, “ministerial officers”), issuing marriage licenses under state laws.

Most strikingly, the Alabama court gave its own lengthy explanation of why denial of marriage rights to gay couples doesn’t violate the Constitution. Its arguments ranged from the laughable to the thoughtful. A poor one was that the law doesn’t discriminate because it denies men and women equally the right to marry people of the same sex. Obviously, this form of logic ignores the possibility of discrimination against gay people. It’s like saying rich and poor alike are barred from sleeping under the bridges of Paris.

A better argument was that the U.S. Supreme Court is imposing its own view of morality on the states, while denying the states the chance to defend their own morality, which is grounded in the Judeo-Christian tradition. This, I think, is a fair depiction of how opponents of gay marriage experience the march of the Supreme Court’s jurisprudence. It would be better, I think, for the courts to acknowledge that most opponents base their position on religious tradition -- and explain that the states may lawfully build on that tradition. They just can’t use religion as a reason to discriminate.

The most gratuitous part of the opinion -- the one that gay-marriage opponents may live to regret -- is the attack on Justice Anthony Kennedy’s opinion in Windsor, which struck down the Defense of Marriage Act. The Alabama court is bound by Windsor’s logic, because it comes from the U.S. Supreme Court. Yet the Alabama court trashed the principle of equal dignity on which Kennedy relied. Equal dignity isn’t mentioned in the Constitution, the Alabama court insisted. The principle, it claimed, is nothing more than a proxy for imposing federal judges’ personal views.

Kennedy believes in the supremacy of his court. He has led the charge in slapping down Congress when it has tried to overrule constitutional decisions. The U.S. Supreme Court may wait until June to overturn the Alabama court’s opinion. But don’t count on it. This sort of resistance will make at least some of the justices very unhappy indeed.

  1. He was removed from the chief justiceship after ignoring a federal court order to take down a 5,200 pound granite version of the Ten Commandments from the courthouse. Really. You can’t make this stuff up.

  2. I myself am increasingly skeptical of it, for reasons having partly to do with what’s happening in this case, but that’s a topic for another day.

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

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net