Yesterday was supposed to be a pretty straightforward day in Alabama. The state’s ban on marriage equality has been deemed unconstitutional by the federal courts, setting the stage for legal same-sex marriages statewide starting yesterday morning. It’s a process that’s unfolded without incident in three dozen other states.
But there was nothing simple about events in Alabama yesterday. Some counties decided to honor the federal court rulings; most counties followed bizarre instructions issued by state Supreme Court Justice Roy Moore (R); and 12 counties decided to simply stop issuing marriage licenses to everyone. The state Attorney General’s office took the remarkable step of telling local judges to ask their own attorneys how best to proceed.
So what happens now?
Gov. Robert Bentley (R) balked at Roy Moore’s request to reject federal court rulings, but the Republican governor isn’t eager to intervene further.
Gov. Robert Bentley won’t take any action against probate judges who issue licenses for same-sex marriages.Bentley issued a statement today after Alabama Supreme Court Chief Justice Roy Moore asserted on Sunday night that it would be up to the governor to make sure probate judges are following state law.
“This issue has created confusion with conflicting direction for probate judges in Alabama,” Bentley said. “Probate judges have a unique responsibility in our state, and I support them. I will not take any action against probate judges, which would only serve to further complicate this issue.
“We will follow the rule of law in Alabama, and allow the issue of same sex marriage to be worked out through the proper legal channels.”
That wasn’t an entirely satisfying response to the problem. Indeed, as a procedural matter, the issue has already been “worked out through the proper legal channels” – the federal courts told Alabama its same-sex-marriage ban is illegal and marriage equality began yesterday. There’s nothing more to “work out” – state officials fought to protect their anti-gay policy and they lost.
That said, the governor’s remarks suggest the issue is headed back to court, though it’s not clear which one. It could go back to the federal courts, but according to much of Alabama, federal courts don’t count anymore, at least when it comes to equal-marriage rights. It could go to state courts, but state courts don’t have the authority to overrule federal court rulings.
Bentley seemed to suggest yesterday he’s inclined to wait for the Supreme Court to issue a final ruling on marriage equality, but that’s not expected before June, and it seems problematic, to put it mildly, to think 46 Alabama counties will simply ignore the federal judiciary for the next several months because Roy Moore says they should.
If you missed it, Rachel had a great discussion on the show last night with NYU legal scholar Kenji Yoshino, and this exchange stood out for me:
MADDOW: How do you think it will resolve in Alabama? Usually these things resolve when a federal court tells a state this is what you`re allowed to do and this is what you`re not allowed to do. In this case, that has not brought us to the end, the chaos in Alabama today, I mean, punctuated by some very happy people being married some places. But that chaos today, how does that get resolved?YOSHINO: Yes, I think it`s going to get resolved by suits against probate judges who refused to issue warnings, right? So, I think that one of the reasons why the judges are choosing the quality of graveyards to the quality of the vineyards. Marriage for no one as opposed to marriage for everybody, because they`re trying to hedge themselves against claims that they are flouting the equal protection clause of the federal constitution…. One thing where Justice Thomas and I agree on is, you know, at a minimum, this will be over in June 2015.