What would Lady Liberty do?

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Alabama's Gay-Marriage Standoff Deserves a Ruling

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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Does the ever-deepening public conflict between state and federal courts in Alabama serve or hinder the cause of gay marriage nationally? This difficult question faces federal District Judge Callie Granade, who must now choose the next move in her legal chess match with the Alabama Supreme Court. Her answer will affect more than the gay couples who want to marry in Alabama between now and when the U.S. Supreme Court decides the issue in late June. It may affect the nature of the Constitution itself.

An update on the state of play: Last week, the Alabama high court ordered state probate judges not to issue marriage licenses to same-sex couples. The court’s order was a frontal assault on Granade, who had previously held that Alabama’s ban on gay marriage violated the equal protection rights of gay couples. But the Alabama court stopped just short of telling the one state judge, Don Davis, who was directly subject to Granade’s jurisdiction to disobey her order. Instead, the Alabama court exempted Davis from its command and instructed him to explain to the court whether he would be bound by Granade’s order in future cases.

Since then, the National Center for Lesbian Rights, joined by several other prominent legal groups, went back to Granade with a fresh request. The lawyers asked the judge to certify the existing case as a class action on behalf of all gay couples seeking to marry in Alabama. The requested certification would also name a class of defendants: all the probate judges in the state who might deny licenses to same-sex applicants.

The point of the legal maneuver is highly specific. Right now, only Davis is the subject of Granade’s order. If Granade certifies a class, she could in effect name all the state probate judges -- and an order to issue marriage licenses would extend to all of them.

The consequences of such a ruling would be dramatic. Right now, although the state Supreme Court has contradicted Granade’s constitutional holding, it’s done so in such a way as to avoid directly contravening her order. If Granade orders all the state probate judges to issue licenses, however, then her order would subject those judges to contradictory commands from their state Supreme Court and from the federal judge with jurisdiction over them. No matter what they did (or didn’t do), the probate judges would have to disobey some higher authority.

What should Granade do? Prudence and justice would seem to provide divergent answers.

From the standpoint of prudence, Granade should probably take the motion under advisement, and hold it until the U.S. Supreme Court resolves the issue. Assuming the court announces a right to gay marriage, the issue will go away, and the Alabama Supreme Court will (presumably) obey.

By avoiding a ruling on the class-action certification, Granade could avoid a spectacle of state judges forced to choose between federal and state control. If even a few disobeyed her, the costs to federal authority could be considerable.

What’s more, it seems at least possible that disobedient state judges might become heroes or martyrs of the movement against gay marriage. Right now, gay marriage looks to be steaming toward the ultimate goal of becoming a fundamental right. Why give opponents an excuse to stand in the way and become symbols of opposition and resistance?

Justice, however, cuts the other way. Granade has ruled that, under the constitution, gay couples have the right to marry in Alabama. The state courts are blocking that ruling. If justice delayed is justice denied, then the Alabama Supreme Court is denying justice to gay couples in the state.

What’s more, the Alabama court has been intransigent in resisting federal authority. It’s done so cleverly, but the message of contempt is clear. This would be an opportunity for Granade to strike a blow not just for gay marriage but also for the authority of the federal courts pursuant to the Constitution. What better place to make the point about federal supremacy than in Alabama?

On balance, Granade should take on the Alabama court and do justice. There’s a saving grace if she does so, too: She won’t have the last word. You can be sure that at least some Alabama probate judges would appeal her ruling to the federal court of appeals. Any judgment by that court would in turn be brought to the Supreme Court.

All this might take, say, three months -- by which time the highest court in the land can solve the problem. In the meantime, this case is far from over.

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