We've been keeping a close eye
on developments in Alabama, where marriage equality is advancing by way of the federal courts, but where a state-based legal crisis is coming to a head today.
The U.S. Supreme Court announced this morning that it would not intervene
to stop same-sex marriages in Alabama -- the wishes of Justices Antonin Scalia and Clarence Thomas were ignored -- which meant the lower court rulings stand and many same-sex couples have spent the morning getting legally married in the Heart of Dixie.
Alabama's controversial chief justice, Roy Moore, issued an order to probate judges Sunday that they cannot perform same-sex marriages -- one day before gay men and lesbians could begin marrying in the state under a federal ruling. Moore, who has written several letters and orders on the constitutionality of same-sex marriage in the Southern state, said interpretations of a federal judge's decision to strike down Alabama's ban in January were "creating confusion and disarray in the administration of the law."
Well, someone is certainly creating confusion and disarray in the administration of the law, but in this case, I'm afraid it's Roy Moore, not the federal courts.
Moore, the chief justice of the state Supreme Court who has long believed federal courts have no legal authority over state laws, has argued repeatedly
in recent weeks that Alabama courts can feel free to ignore federal court rulings on marriage. It led to last night's order in which Moore, because he felt like it, told probate judges that Alabama's ban on marriage equality remains intact, federal courts be damned.
And some local judges are taking Moore's instructions seriously
Alabama today is the 37th state in the nation where same-sex marriage is legal, but the decision whether to issue same-sex couples marriage licenses varies from county to county. As a ruling ending the gay marriage ban was to take effect, couples around the state arrived at county courthouses this morning. Chief Justice Roy Moore, however, ordered probate judges not to issue the licenses.
What we have, in other words, is a situation in which some in Alabama are ignoring a federal court order, while others honor it.
One local jurist, Washington County Judge Nick Wiliams, explained his refusal to marry gays couples this way
: "I'm not worried about following the U.S. Constitution." Take a moment to appreciate the fact that this comment came from a sitting judge.
If you find yourself thinking this morning about George Wallace, you're certainly not alone. Indeed, the parallels are important: the last time officials in Alabama said their desire to discriminate outweighed federal court rulings, it didn't turn out well.
That said, it's equally important to note who is -- and isn't -- filling Wallace's shoes. The Birmingham News'
Charles J. Dean explained
this morning that Alabama Gov. Robert Bentley (R) has decided not to read from Roy Moore's script (thanks to my colleague Laura Conaway for the heads-up).
Moore's actions came after Bentley refused more than once last week to fill Wallace's shoes and take what would have been meaningless actions to try to block the federal court order. Bentley refused to become the next Alabama governor making a show of defying the law in front of TV cameras and in the process sending the message that our state is still intolerant and a lawless place for some of its citizens who happen to be different from the majority. But what Bentley refused to do, Moore did do. He is trying to stand in the courthouse door as surely as Wallace stood in the schoolhouse door. Shame on him. [...] On Sunday, in his own First Baptist Church of Tuscaloosa, Bentley heard his pastor call on him to "do the right thing" and take some kind of action to stop same-sex marriage. To hear your pastor tell you to do the right thing is to imply you are doing the wrong thing. That has to be hard to hear coming from someone you look to for spiritual guidance. The appeal did not change Bentley's mind. He was not going to stand in the courthouse door and defy the law, as Wallace did and as Moore did a decade ago when he refused to follow a federal court order to remove a Ten Commandments monument from the state's Judicial Building.
Remember, Bentley is no moderate. He's a staunch, conservative Republican who opposes marriage equality. But he's also a governor who believes that the rule of law matters -- and states can't simply ignore federal court orders they don't like. Bentley is well aware of George Wallace's legacy, and as of this morning, he won't repeat history.
As for Alabama Attorney General Luther Strange (R), the state official apparently wants to keep his distance
from the whole thing: "Strange said that while probate judges did not report to him, he advised them to talk to their attorneys about how to respond to the ruling and referred state agencies to the governor's office with questions about the ruling."