Asked by the Alabama Supreme Court for advice on what to do next on same-sex marriage, two conservative advocacy groups in the state have urged both direct and indirect resistance to the Supreme Court’s ruling mandating a constitutional right for gays and lesbians to wed. The state court, the groups argued, has the constitutional power to refuse even to accept what the Justices have done, and has a constitutional duty to insulate state officials from legal risk if they do not obey the decision based on a religious objection.
The thirty-three-page brief was filed on Monday by the Alabama Policy Institution, a think tank, and by the Alabama Citizens Action Program, an inter-denominational church support group, which earlier had persuaded the state’s highest court to block all of the state’s sixty-eight probate judges from issuing any marriage licenses to same-sex couples, even though all of them were under an order to do so by a federal judge in Mobile. Depending on what the state court now does, it could set up a new federal-state collision that potentially could go to the Supreme Court. Lower federal courts could take direct action against state trial court judges, but only the Supreme Court could review a decision by the Alabama Supreme Court on a federal constitutional issue.
Three days after the Supreme Court issued its ruling in Obergefell v. Hodges, the state court asked the two groups and two probate judges directly involved in the case for their views on the effect of the Supreme Court decision on the state court’s earlier action. The two probate judges said in short briefs that the state court had to respect and follow the binding ruling of the Supreme Court — the same position that Alabama’s attorney general has taken.
But the two organization leading the challenge before the state court used a combination of arguments — points made by the dissenting Justices in the Obergefell decision on the errors they found in the majority ruling, the protests of the Rev. Martin Luther King, Jr., against “unjust laws,” and a series of Wisconsin Supreme Court rulings defying the Supreme Court in a mid-nineteenth-century runaway slave case — to persuade the state judges to treat the Obergefell ruling as not binding on them.
Aside from reciting at length from the Obergefell dissenters, the brief was focused heavily on the back-and-forth decisions of Wisconsin’s highest state court and the Supreme Court, over the power of a state court to order the release of an abolitionist, Sherman M. Booth, from federal custody on charges related to his role in arranging the freedom of a runway slave from Missouri. The slave was never recaptured, but the Supreme Court, in the unanimous decision in Ableman v. Booth, ruled that the state court had no power to interfere with the prosecution of Booth.
The Alabama groups’ brief noted that the state supreme court refused to accept the Supreme Court’s decision: “In the nearly 157 years since the U.S. Supreme Court’s purported reversal [of two state court rulings], the Wisconsin Supreme Court has never filed or accepted the U.S. Supreme Court’s mandates.” What the state court did, the brief asserted, was done “in fidelity to the U.S. Constitution.”
When the federal courts engage in “unlawful acts,” the brief contended, state courts have the obligation to resist, even if that sets up “a collision” between state and federal courts. It quoted one of the Wisconsin judges’ comment at the time that “it is much safer to resist unauthorized and unconstitutional power, at its very commencement, when it can be done by constitutional means, than to wait until the evil is so deeply and firmly rooted that the only remedy is revolution.”
The two groups devoted the last three pages of their filing to arguing that the state supreme court should do what needs to be done to insulate all state probate judges, and any members of their staffs from any punishment if they refuse to issue marriage licenses to same-sex couples because of their religious opposition to such unions.
The sixty-eight probate judges — the only officials in the state with authority to issue marriage licenses — are, at least for the time being, covered by both the state supreme court’s earlier order prohibiting them from issuing any licenses to gays and lesbians, and a recently renewed order by the Mobile federal judges that they must do so under the Supreme Court’s Obergefell decision.