Roy Moore Is Right. Sort of.

This was fun. Let's do it again in 50 years

This was fun. Let’s do it again in 50 years

On Monday, February 9, 2015, Alabama became the 37th state to permit gay marriage. Well, sort of. Federal judge Callie Virginia S. Granade had already told Alabama on January 23rd in Searcy v. Strange that its “sanctity of Marriage” constitutional amendment was in direct violation of the Fourteenth Amendment.[1] The state’s attorney general had asked for a stay to this ruling, hoping that some clarity might come from the Supreme Court’s upcoming Gay Marriage Cases, to be decided in this term.[2] But on Monday, February 9, the Supreme Court declined to issue the stay. Gay couples immediately applied for marriage licenses, and by this writing, several had been granted.

But Alabama is not going gently into that good night. Roy Moore, Chief Justice of the Alabama Supreme Court, issued a memo instructing the probate judges that they were not controlled by the federal district court’s ruling, and that they were thus under no compulsion to issue marriage licenses not in conformity with Alabama law. He followed this on Sunday with a direct order to probate judges not to issue same-sex marriage licenses.

You might excuse Alabama’s probate judges for being a little shaken. If they refuse to issue marriage permits to gay couples, they will likely be the targets of lawsuits. If they do issue marriage permits, then they are in danger of violating their oaths to uphold Alabama law (and whatever punitive action Chief Justice Moore might convince the state to pursue). If they do nothing, like the Honorable Don Davis, Judge of the Probate Court for Mobile County, who neglected to open his court on Monday morning, they face motions for contempt in federal court.

It’s a pickle.

So who’s right? Can a federal district court unilaterally overturn a state constitutional provision? Can it bark orders at probate judges, who ignore it at their peril? Can the state tell the federal court to kiss off? Declare Alabama law binding despite a ruling that puts it at odds with the U.S. Constitution?

The answer to these four questions are not easy, nor clear in these circumstances. They might be, in this order: yes (but subject to considerable review); sometimes, sometimes; and no… if.

Or, to say it more completely: 1) a district court is obliged to annul state constitutional provisions in opposition to the U.S. Constitution, but it is bound by appellate precedents (which are unsettled in this case) and is subject to review by the prevailing circuit court and the US. Supreme Court; 2) district courts can instruct state officers in some circumstances; 3) states do have the prerogative, although often not the power, to tell overreaching federal officers that they have waded into areas reserved to the states; and 4) Alabama law will never control if a law puts it at odds with the U.S. Constitution. But that’s an important “if,” especially when specific rights are being read out of general constitutional clauses, as they are in this case.

Liberal commentators have seen it all before. Alabama (and other southern states) conjured up every states’ rights argument, every federalism principle, to resist complying with Brown v. Board of Education (1954). Desegregation often came in the form of orders from federal district courts. Segregationists responded by trenchantly defending state officers’ right to act under state law and protested that the Supreme Court had no business telling the states how to govern themselves.

But whereas segregationist resistance to the Civil Rights Movement was tragic, Alabama’s opposition today looks more like farce. The pictures of George Wallace in 1962 literally standing in the schoolhouse doors made for powerful theater, and the presence of federal troops in the South—not even one-hundred years after the end of its occupation by Yankee soldiers—sent a chill through Cold War America. The tension was real. So too was the violence that followed, and the consequences still felt today.

You can't quit me

You can’t quit me

Now Roy Moore is no George Wallace. Not that Moore doesn’t make a go of grandstanding in the Wallace tradition—it’s just that he comes off as trying too hard when it matters the least. If anyone today knew him before this event, it was likely for his 2002 defiance of a federal court order to remove a granite monument to the Ten Commandments that he put in the rotunda of the Alabama Supreme Court. That one didn’t turn out so well for him—he was removed from office for his pains. And then Moore, who had spent the previous year denying that the monument was religious in nature, whined that he had been removed from office for “acknowledging God.”

So is the law on his side this time? Roy Moore’s memorandum to probate court judges turns on a point of authority. In Searcy v. Strange, the sole defendant in the case was Alabama’s attorney general.[3] Moore has argued that it therefore does not bind probate judges. Technically he is correct—the judge’s order in Searcy v. Strange does not direct the Mobile County probate court judge because the judge was not a party in the case.

But wait, you say: did not the district court also declare that the state’s “sanctity of marriage” amendment and enabling legislation was unconstitutional? So doesn’t this enjoin probate judges from enforcing that law? Moore says no, arguing that a district court’s reading of the Constitution is not binding on state officers the way the Supreme Court’s would be. In short, the district court does not have the appropriate authority to command state officers as to their duties when there is a potential conflict of laws.

These are not unreasonable arguments. Courts are not absolute, and federal judges are not monarchs, district judges especially. The jurisdiction of their courts is fairly limited, and their ability to direct state officers is a complicated question, fraught with uncertainty. Nor is the U.S. district court in southern Alabama enforcing an established point of law, settled beyond any doubt by the Supreme Court as the law of the land. There is no Brown v. Board of Education that controls in this matter.

Conservatives have jumped on this point, lauding Moore as a kind of states’ rights hero and tireless fighter of federal tyranny. Ed Whelan at the National Review Online defended Moore thusly:

 

Consider this hypothetical: In the immediate aftermath of the Supreme Court’s Dred Scott ruling, a federal district court, applying the principle of Dred Scott, enjoins a northern state from enforcing a law providing that a slave who is voluntarily taken by his master into the state thereby becomes free. Must state officials comply with the injunction?

The first resort of scoundrels

The first resort of scoundrels

What does this prove? Besides the obvious—that legal commentators always dredge up Dred Scott (1857) when they want to be outlandish—it does not prove what Ed Whelan thinks it does. It fails on legal grounds for a simple reason. Dred Scott was decided before the passage of the Fourteenth Amendment, which fundamentally changed federal relations. The supervisory authority of the federal government and the subordinate status of the states is not a matter of original constitutional design. It is instead the product of constitutional development. However vigorously current states’ righters attempt to turn the clock back to pre-Civil War Amendments days, it ain’t happening.[4]

It also fails on historical grounds. The situation that Whelan described actually happened. It happened even before Dred Scott, when federal judges told states that they could not enforce personal liberty laws because they contravened the Fugitive Slave Clause of the Constitution as well as federal law. State officers were particularly brazen about ignoring these orders, and the Supreme Court of Wisconsin even declared the Fugitive Slave Act unconstitutional rather than submit to a federal district court’s orders.

What was the result of all of this heroic state action in defense of liberty? Of northern states’ officers resisting the tyrannical federal government in the name of states’ rights? It upset the southern states enough that they tried to break up the Union. The Civil War followed.

Now, Roy Moore is not going to lead the country to another Civil War over gay marriage.[5] Nor is Alabama’s resistance to gay marriage remotely analogous to northern states’ resistance to the Slave Power in the 1850s. This point is so bone simple that it pains one to write it, but if Ed Whelan of the National Review Online is going to invite the comparison, then someone has to sigh, take out the dunce cap, and ask him politely to go sit in the corner.

Nonetheless, Whelan has a point. When the law is unclear—and it is unclear—multiple interpretations can exist. And precisely because our federal system is so complex, resistance to standing law and to federal orders can easily fit inside the system. This, in fact, is precisely what happened with Dred Scott, and with the Fugitive Slave Act in the 1850s. Antislavery northerners frustrated by a federal government thoroughly in the grips of the Slave Power turned to their state legislatures, state judges, sheriffs and constables to resist slavery’s intrusion into free states.

And this was a good thing, for three reasons. First, we all know now that slavery is evil, ergo those who resisted it were on the right side of history in the 1850s. Second, abolitionists who resisted by constitutional and legal means helped to forestall violence. They were not entirely successful, as violent resistance accompanied legal resistance to slaveholders. But where legal strategies were most robust, recourse to violent methods was less frequent. Third, the legal arguments required repeated articulations of constitutional aspiration. People were literally forced to state their understanding of the Constitution’s deeper meaning over and over again, and to defend it against attack.

In the 1850s, this made crystal clear the real issue at stake: slavery or equality. The southern states made their choice when they threw down the gauntlet in 1860-1861 in favor of slavery. We are in the middle of a similar process right now over gay rights. It has been going on for the better part of twenty years, and the result is that we all now know what is at stake. And that’s a good thing. It is the sign of a healthy, pluralistic polity where disagreements can be channeled into legal and political venues.

So Roy Moore has his role to play. So far, he has not done anything outlandish. There is significant ambiguity in the law for his position to have some merit. Unlike the segregationists of our recent past, Moore is not defying the whole of the federal government. The whole of the federal government has not yet declared gay marriage a right. So long as we are in the middle of a pitched legal battle over the boundaries between individual rights and state prerogatives, then there is some space for dissent. In fact, I would argue that Moore’s actions so far comport with the kind of legal conflict that is vital to our constitutional system.

Do not look directly at me

Do not look directly at me

Of course, matters will be different after the Supreme Court rules in the Gay Marriage Cases. While we don’t know what the Court will do, Justice Clarence Thomas gave us a big hint when he petulantly observed that the Court’s refusal to grant a stay to the district court’s ruling “may well be seen as a signal of the Court’s intended resolution of the question.” I’m not one to read tea leaves, but I can already taste the bile in Scalia’s dissent.

If the Supreme Court does declare gay marriage a right, and if then Roy Moore waddles down to Mobile to stand in the probate court’s doorway to prevent gay couples from obtaining marriage licenses and adopting children, then we will have arrived at a strange moment indeed. But until that moment, Moore’s self-aggrandizing actions should not be blown out of proportion. He hasn’t done anything spectacular yet.

H. Robert Baker teaches history at Georgia State University. He is the author of The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (2007) and Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution (2012). He is currently working on a book about Napa Valley in the 1970s and 80s. 

References

[1] Searcy v. Strange 2015 U.S. Dist. LEXIS 7776

[2] On January 16, the Supreme Court consolidated the petitions of four cases: Bourke v. Beshear; DeBoer v. Snyder; Obergefell v. Hodges; and Tanco v. Haslam. The Court will consider in these cases the following two questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?; and 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

[3] The original action named a number of defendants, but on August 28, several defendants were removed.

[4] I refer here to the Thirteenth, Fourteenth, and Fifteenth Amendments.

[5] If anything, universally recognized gay marriage might lead to a national party. An epic national party.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: