Last week, federal District Judge Ginny Granade struck down Alabama’s “Sanctity of Marriage Amendment.” The law had the effect of banning same-sex marriage within the state, and most honest observers of the federal judiciary were not surprised to see it fail. The hand-writing has been on the wall for such state laws since the Supreme Court struck down the federal version – the Defense of Marriage Act – in 2013. Late last year, the Court refused to hear appeals in which lower courts allowed gay-marriage. And more recently, it has agreed to hear a consolidated set of appeals from the Sixth Circuit on the issue of state bans, which many experts believe will result in a declaration that all state laws barring gay marriage are unconstitutional.
In other words, Granade was not trail blazing. This was not “judicial activism.” But don’t tell that to elected officials in Alabama and other ultra-conservative states. Either they don’t understand how federalism works, or they are exploiting ignorance and intolerance within their constituencies in order to gain political street-cred for their supposed defiance. In most cases, it’s the latter. And we’ve seen this movie before. Politicians in Alabama and beyond have been pandering to voters’ crassest impulses for decades.
Over the weekend, the Alabama Probate Judges Association issued a statement in which it claimed that Granade’s ruling had no bearing on the state’s judges, who, according to the association, will simply refuse to issue same-sex marriage licenses. The association’s attorney said, “The legal effect of this decision is to allow one person in one same sex marriage that was performed in another state to adopt their partner’s child. There is nothing in the judge’s order that requires probate judges in Alabama to issue marriage licenses to same sex couples.” So the probate judges will continue to follow the law as set out in Alabama’s tragically archaic 1901 constitution.
This “’law of the case,’ not the ‘law of the land’” defense is a familiar one. Take this statement from July 9, 1954, issued by the Alabama State Board of Education:
“The ruling of the Supreme Court . . . on the so-called ‘segregation cases’ [Brown v. Board] has raised considerable doubt and many questions . . . . Section 256 of the Constitution of the State of Alabama is in part as follows: ‘Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.’ This particular constitutional provision has never been stricken by any court in the land . . . . No changes in this announced policy shall be made in any public school system in this state during the school year 1954-55, irrespective of any action by any court in any case in which a unit of the public school system of Alabama is not a party.”
The state board of education in 1954 knew that the Supreme Court intended the Brown ruling to apply beyond the cases at hand, just as well as the probate judges association now knows that this latest ruling binds them.
Chief Justice Roy Moore recently agreed with, and was “encouraged by,” the probate judges’ stand. Moore issued his own statement in which he condemned Granade’s ruling and pledged to “continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment.” He claimed that the ruling “raised serious, legitimate concerns about the propriety of federal court jurisdiction.” And he insisted that he would “stand with” Alabamians in order “to stop judicial tyranny and any unlawful opinions issued without constitutional authority.”
Moore is widely known for defying a federal court order to remove a massive Ten Commandments monument from the state courthouse and has repeatedly refused to accept that his Christian faith cannot function as a judicial predisposition. He recently indicated that he believes that allowing gay marriage will destroy traditional marriage, and that this will ultimately result in the destruction of American civilization. Moore told an audience that traditional marriage was “the best guarantee of that reverent morality which is the source of all beneficent progress and social and political improvement” and the “foundation of our country.” The issue is not “two people getting married.” It is, he said, “about destroying an institution ordained of God.” He concluded, “If it is destroyed, then our Constitution will fail, our government will fail because God’s institution has been interfered with.”
This is also familiar – making slippery-slope, doomsday predictions, and connecting what many consider to be plainly constitutional legal ends to moral degradation and the destruction of Western civilization.
It resonates with a statement issued by Alabama State Superintendent of Education Austin Meadows in 1966. Meadows wrote, “Segregation is a perfectly good word. It has been practiced throughout the ages for good results [and] used by the people of the civilized world for man’s greatest advancement.” Segregation, he insisted, was “the basic principle of culture.” Did not the Lord set aside “segregated fruit for Adam and Eve,” and wasn’t marriage the “the highest type of segregation,” without which “there would be no family unit.” Destroying segregation would mean tearing at the very fabric of civilization.
See also the words of one of Roy Moore’s predecessors, former Chief Justice Walter Jones, who publicly argued that civil rights activists were engaged in a “massive campaign of super-brainwashing propaganda.” These “integrationists and mongrelizers,” did not “deceive any person of common sense with their pious talk of wanting equal rights and opportunities,” though. According to the Chief Justice, writing in 1956 in defense of newly passed state laws designed to thwart Brown v. Board, the “real and final goal” of integrating schools was “intermarriage and [the] mongrelization of the American people,” or “an impure, mixed breed that would destroy the white race.”
Then and now, state officials have also made much hay of condemning “unlawful” rulings with no “constitutional authority.” The issue of states ignoring, obstructing, or otherwise defying federal court orders has now been settled for 60 years. When the U.S. Congress passed the Civil Rights Act of 1960 and codified the effect of Cooper v. Aaron – the Little Rock school case – the notion that a state might “interpose” its authority between the federal government and state citizens, that it might “nullify” a federal law, that it might simply defy federal judicial authority, was laid to rest. But you wouldn’t know it in the Heart of Dixie, then or now.
In 1970 Governor Albert Brewer proposed a “Freedom of Choice Law” for the state of Alabama. Federal courts had already settled the issue of freedom-of-choice, a method of desegregation which theoretically allowed students to choose which school to attend. It did not lead to integration and did not, therefore, do away with second-class status for black students. So courts were moving towards requiring compulsory assignment plans. Instead of accepting this as the settled state of the law, Brewer and others stoked white resistance by passing the new “Free Choice” law, which was doomed to immediate failure.
Brewer argued that people in Alabama had “reluctantly accepted” the “demoralizing” situation that was token integration. The new law was supposed to salvage the best of something bad by putting the state “on the offensive, finally.” When it was summarily brushed aside by a federal appellate panel weeks later, Brewer condemned the federal judiciary for “destroying the public school system” and added, “I would like to see a federal judge stand up on his hind legs and say he wasn’t going to do it, if he felt it violated the law and not what some other judge has said.” Albert Brewer knew that a federal trial court judge could not simply defy the orders of a higher court. But most of his constituents did not. And therein was the payoff.
Finally, in the latest round of claptrap, we have Alabama’s Speaker of the House Mike Hubbard weighing in similarly. Hubbard last week issued a statement, saying, “It is outrageous when a single unelected and unaccountable federal judge can overturn the will of millions of Alabamians who stand in firm support of the Sanctity of Marriage Act.” Hubbard guaranteed that the state legislature would “encourage a vigorous appeals process” and would “continue defending the Christian conservative values that make Alabama a special place to live.” Hubbard thus adds the delicious element of irony, maybe even hypocrisy, to the stew of political pandering, for he has been indicted by the state for a litany of alleged abuses. In general, he is accused of using his office, and his position as the head of the state’s Republican Party, to enrich himself personally, via his printing company and his radio network.
Of course, Hubbard is innocent until proven guilty, but if he is convicted on any of the 23 felony corruption charges laid against him, this statement will be a fantastic reminder that Alabama politicians have a long history of ignoring the facts, and the law, and their own past and present failures, in order to score political points.
Others outside the former Cradle of the Confederacy would be wise to note that Alabama isn’t the only state capitalizing on intolerance by trying to thwart marriage equality in the face of increasingly unstoppable momentum in the other direction. Senator Ted Cruz has called for a federal constitutional amendment preventing judges from striking gay marriage bans, and Louisiana Governor Bobby Jindal and others have come out in support of the notion. The more they reinforce their narrative without a counterpoint, the more attractive and plausible it looks to the average voter.