Sharply criticizing the Supreme Court for its recent actions on same-sex marriage, the Alabama Supreme Court on Tuesday evening ordered all state judges who have the duty to issue licenses to wed to stop doing so immediately for same-sex couples.
Using its independent power to interpret the federal Constitution, the state tribunal upheld the Alabama ban on same-sex marriage — a ruling directly contrary to a decision by a federal trial judge in Mobile. The Supreme Court itself has refused to stop the enforcement of the federal judge’s ruling while the state appeals to the U.S. Court of Appeals for the Eleventh Circuit.
The seven-to-one decision, made in three opinions running to a total of 148 pages, put at least some of the sixty-eight probate judges in the state in the position of having to obey directly contradictory court orders. That will ensure a deepening of the confusion that has been more apparent in Alabama than in any other state in the wake of a string of federal and state court decisions against state bans on same-sex marriages.
The majority opinion in the state court, issued unsigned but in the name of the court (“per curiam”), sought to refute every argument made for same-sex marriage as a constitutional matter and lambasted the Supreme Court for making a “moral judgment, not a legal judgment” when it struck down the federal Defense of Marriage Act in United States v. Windsor in June 2013.
The Windsor ruling, which did not take any position on a right to same-sex marriage but spoke favorably of the dignity of such marriages and the need for government to respect such unions, set off the series of lower court rulings that have since made same-sex marriages legal in thirty-six states. The Supreme Court will take up the constitutional question in April, and is expected to have a ruling by early summer.
The Alabama tribunal reached out to decide the constitutional question, according to criticism by the dissenting judge, Justice Greg Shaw. The state’s highest court had been asked by two private groups that oppose same-sex marriage to get involved in the issue after the decision by the federal judge in Mobile, but did not seek a direct ruling on the validity of the state’s same-sex marriage ban under the federal Constitution.
The majority ruled that two private groups could stand in for the state government to raise the constitutional issue, and also allowed one of the state’s probate judges to join in the case to seek an order against issuing marriage licenses to any couple except a man and a woman.
Joining in the 134-page majority opinion were Justices Lyn Stuart, Michael F. Bolin, Tom Parker, Glenn Murdock, Alisa Kelli Wise, and Tommy Bryan. Justice James Allen Main joined all of the opinion, except the section that found that the two private groups had a right to pursue the case as a matter originating in the state’s highest court.
Chief Justice Roy S. Moore, who had undertaken on his own to try to stop the state probate judges from issuing marriage licenses to same-sex couples, and sought to enlist the state’s governor in resisting such licensing, did not take part in Tuesday’s ruling. His absence from it was not explained.
Judge Shaw’s dissent did not take a position on the constitutionality of the state ban on same-sex marriage, arguing that it was premature for the state supreme court to decide that issue when no lower state court had first ruled on it.
The majority opinion canvassed all of the arguments that other courts have used in nullifying state bans on same-sex marriage, and rejected each of them. When it turned to analyzing the Supreme Court’s Windsor decision, it said the last remaining argument that could be used to support a right to same-sex marriage was the “dignity” rationale that was stressed by Justice Anthony M. Kennedy in Windsor.
The state court majority used the technique of disputing the Mobile federal judge’s decision as a way to mount criticism of the Supreme Court. If none of the arguments used by the federal judge support same-sex marriage as a newly defined right, the state court said, that leaves only the “dignity” concept “that comes from” the Supreme Court’s Windsor decision.
There is no “equal dignity” provision in the Constitution, the main state opinion said. “Instead,” it added, “what this notion appears to be is a legal proxy for invalidating laws federal judges do not like, even though no actual constitutional infirmity exists.”
Suggesting that the Court’s Windsor decision essentially “adopts the new definition of marriage,” the state court commented that this notion “necessarily makes a moral judgment about adult sexual relationships….Because the notion is not contained in the Constitution, one may question whether it is nothing more than intuition.”
In ordering an immediate stop to the issuance of any marriage licenses to same-sex couples, the state court stressed that it was extending that order to all sixty-eight probate judges, some of whom have been issuing such licenses in the wake of the Mobile federal judge’s ruling, and, especially, in the wake of the Supreme Court’s refusal to put that ruling on hold.
For judges who had not been named directly in the legal challenge, the state court gave them five days from Tuesday to answer the challenge and argue why they should not have to obey the statewide order against such licensing. For a judge who is directly covered by the federal court ruling, the state court gave him until Thursday to notify it whether that ruling extended beyond the four couples’ licenses that he was ordered to issue.
Because the state court’s ruling is an interpretation of the federal Constitution, it would appear to be subject to direct appeal to the Supreme Court, if any state judge would seek to take the case there.
It is not clear, though, that any same-sex couple would have a right to appeal it; they were not parties in the case before the state tribunal. Such couples, however, presumably could bring a new lawsuit against any state probate judge who, acting on the basis of the order, refused a license.