Alabama, religious bigotry, and ‘massive resistance’ to same-sex marriage

In Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), a unanimous U.S. Supreme Court held that “separate educational facilities are inherently unequal.” As a result, de jure racial segregation was ruled to be a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In Brown II (1955), the Supreme Court ordered the lower federal courts to require desegregation “with all deliberate speed.”

Wallace_at_University_of_Alabama_edit2The Court’s decision was met with massive resistance by Southern segregationists to avoid implementing public school integration. President Dwight D. Eisenhower federalized Arkansas National Guard troops to protect nine black students integrating Central High School in Little Rock, Arkansas in 1957. President John F. Kennedy later had to send national guard troops and U.S. Marshals to enforce court orders for integration in Alabama and Mississippi.

60 years later, conservatives once again are promoting the discredited idea of massive resistance to federal court decisions striking down state same-sex marriage bans as unconstitutional. Religious Right plans massive resistance to same-sex marriage court rulings.

Once again, Alabama is in the national spotlight today. The U.S. Supreme Court has denied the request of the state of Alabama to delay a federal court order striking down that state’s same sex marriage ban. USA Today reports, Supreme Court denies Ala. a hold on same-sex marriages:

Alabama began issuing marriage licenses to same-sex couples Monday after the U.S. Supreme Court denied the state’s request to extend a hold on a federal judge’s earlier ruling.

Judge Alan King of Jefferson County Probate Court in Birmingham issued the first license to two women, making Alabama the 37th state where gays can legally wed. He then proceeded to issue several more.

“It is great that we were able to be part of history,” said Dee Bush, who has been with her partner Laura Bush for seven years. They have five children between them.

After receiving her license, she and partner walked outside to a park where a minister was performing wedding ceremonies to cheers from crowds.

Alabama Chief Justice Roy Moore on Sunday had ordered the state’s probate judges not to issue marriage licenses to same-sex couples.

The outspoken social conservative told judges in a six-page letter that a federal judge’s decision striking down the state’s ban on same-sex marriage was not binding on state courts, and that it had caused “confusion” in the state.

Moore’s action, set up showdown between the state’s chief justice and the federal courts, won swift condemnation from LGBT rights groups. HRC Legal Director Sarah Warbelow called Moore’s letter “a pathetic last-ditch attempt at judicial fiat” in a statement Sunday evening.

“Absent further action by the U.S. Supreme Court, the federal ruling striking down Alabama’s marriage ban ought to be fully enforced, and couples that have been waiting decades to access equal marriage under the law should not have to wait a single day longer,” the statement said.

Issued hours before same-sex marriage was expected to become legal in Alabama, the letter says “no probate judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.” The named sections refer, respectively, to the state’s 2006 constitutional amendment banning same-sex marriage, and the 1998 law doing so.

U.S. District Judge Ginny Granade struck down both the law and the constitutional amendment in two decisions on Jan. 23 and Jan. 26, saying they violated same-sex couples’ equal protection and due process rights under the 14th Amendment to the U.S. Constitution. Moore’s order comes as a stay of Granade’s decision was set to expire; as of Sunday evening, the U.S. Supreme Court had not acted on a petition from the state seeking an extension of that stay.

Things are not as sanguine as USA Today suggests. Think Progress reports Constitutional Crisis In Alabama As State Judges Buck Federal Order On Marriage Equality:

As of Monday morning, District Judge Callie V. S. Granade’s stay on marriage equality in Alabama has expired and, with the Supreme Court declining to issue its own stay, her ruling declaring the state’s ban on same-sex marriage unconstitutional is in effect. Same-sex couples are already lined up to marry at courthouses, but some may still be turned away by probate judges who refuse to abide the ruling.

Probate judges in various counties have indicated that they will in some way circumvent same-sex marriage licenses. For example, Marengo County Probate Judge Laurie Hall has said that her office will still make marriage licenses available, but she will no longer sign them for any couple. Pike County Probate Judge Wes Allen has similarly taken his office “out of the marriage licensing business altogether,” citing state law that indicates that judges “may” issue marriage licenses — but don’t have to. Clarke County Probate Judge Valerie Davis has taken the same step, while judges in Covington County and Washington County will continue to discriminate against same-sex couples per the unconstitutional state law.

If any judges were on the fence about whether to issue licenses, they may find a reason not to in the “administrative order” issued by Alabama Chief Justice Roy Moore last night. Moore, who has a history of bucking federal court orders, simply declared that probate judges do not have to abide the federal order.

This may not, however, be the best legal advice. Though the Alabama Probate Judges Association originally found reason to avoid issuing marriage licenses to same-sex couples, two follow-up orders from Granade changed the scope of her original ruling. In a separate case about a couple seeking to marry in-state as opposed to just having their out-of-state marriage recognized, she issued an injunction that bound any state officer tasked with enforcing the state’s ban. She also issued a clarification of her original ruling and, borrowing a strategy from District Judge Robert Hinkle in Florida, pointed out that even if her injunction does not require probate judges to issue licenses, the Constitution does. Thus, any probate judge who continues to violate a same-sex couple’s constitutional rights could be held legally liable with a new complaint. This would not be the first time that Alabama probate judges have ignored a federal ruling about who they should issue licenses to. The ACLU has set up a hotline that same-sex couples can call if they are refused a license, while the anti-LGBT Liberty Counsel has already announced it will defend probate judges in such cases.

At least one county probate judge will not need assistance from the Liberty Counsel. Jefferson County Probate Judge Alan King is ready to issue licenses to all couples Monday morning, so same-sex couples will begin marrying in Alabama. Freedom to Marry has a thorough list of Alabama wedding officiants prepared to solemnize same-sex weddings.

This is not the first time Judge Roy Moore has endorsed defying a federal judge’s order. He is best known for refusing to remove a monument of the Ten Commandments from the state Supreme Court’s building in 2003 in defiance of a federal judge’s ruling. He was removed from office for his actions, but he was reelected to the post three years ago.

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