A motion filed in an Alabama federal court on Friday will likely bring Alabama’s efforts to thwart marriage equality in that state to an unceremonious halt. This motion, in the likely event that it is granted, will give a federal judge who sided with marriage equality authority over each of the state’s probate judges that refuse to comply with her decision.
The probate judges currently are caught between two dueling court orders. In the same week that lawmakers gathered in Selma, Alabama to commemorate the bloody march that inspired the Voting Rights Act and helped break the back of Jim Crow, the Alabama Supreme Court handed down a 134-page opinion placing the state in opposition to a different kind of civil right. On Tuesday evening, the state supreme court ordered all the state’s probate judges but one — Mobile Probate Judge Don Davis is subject to a federal court order requiring him to comply with the Constitution’s promise of equal rights under the law — to stop issuing marriage licenses to same-sex couples in Alabama. The state’s justices also hinted that they may soon extend this order to Judge Davis.
This order is the culmination of a weeks-long campaign of resistance to marriage equality from within the state’s judicial system. Not long after Judge Callie Granade, a George W. Bush appointee to a federal district court in Alabama, held that denying equal marriage rights to same-sex couples violates the Constitution, the Alabama Probate Judges Association claimed that, despite Granade’s ruling, “they must follow Alabama law and cannot issue marriage licenses to same-sex couples.”
In reality, the Constitution provides that it is the “supreme law of the law” and “the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” So state judges are not free to defy a federal court’s order interpreting the Constitution.
The Constitution, however, did not stop Alabama Chief Justice Roy Moore from issuing an order a month ago claiming that the state’s probate judges “are not bound” by Judge Granade’s decision. Nor did it deter seven of Moore’s eight colleagues from joining Tuesday’s decision.
The Alabama Supreme Court’s opinion rests, at least in part, on a narrow procedural technicality that, at least temporarily, limits the scope of Judge Granade’s authority. The original lawsuit challenging marriage discrimination in Alabama named Attorney General Luther Strange (R-AL) as the defendant, and Granade’s original order bound Strange and “his officers, agents, servants and employees, and others in active concert or participation with any of them who would seek to enforce the marriage laws of Alabama that prohibit same-sex marriage.” In Alabama, however, marriage licenses are issued by probate judges, and these judges are not “officers, agents, servants [or] employees” of the attorney general. Thus, according to the state supreme court, these probate judges (except for Judge Davis, who was added to the federal lawsuit in a subsequent order by Judge Granade) are “not bound” by the federal court order.
There is precedent for the state supreme court’s tactic of using narrow procedural technicalities to defy federal court orders, though it is not a precedent many judges would be particularly proud of. In the decade following the Supreme Court’s decision declaring school segregation unconstitutional, states like Alabama took advantage of a similar technicality to thwart the Court’s decision.
Admittedly, this tactic was aided by a timid decision that the Supreme Court handed down a year after Brown v. Board of Education. Though the Supreme Court’s 1954 decision in Brown repudiated public school segregation, the justices handed down another order one year later holding that desegregation need only move forward “with all deliberate speed.” Notably, this Brown II order provided that local federal judges would supervise the actual process of desegregating public schools.
Just as Judge Granade’s decision only applies, on its face, to a limited list of state officials, the Supreme Court’s Brown decision did not automatically force every Jim Crow school district in states like Alabama to begin the process of integration. As I lay out in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, this enabled white supremacists to wage a two-pronged campaign of resistance to public school segregation.
The first prong of this campaign relied upon a similar technicality to the one that limits the scope of Judge Granade’s authority. In order for an Alabama public school that was not already under a federal court order to be desegregated, an African American student who wished to attend integrated schools had to file a federal lawsuit seeking to enforce the Brown decision. Absent a proper plaintiff invoking a federal court’s jurisdiction, the courts were powerless to order schools to integrate.
The second prong is, thankfully, unlikely to be repeated in Alabama today. It was terrorism. Black families that dared to file a desegregation lawsuit faced widespread Ku Klux Klan violence and similar tactics used to deter African Americans from bucking apartheid. This terrorism was effective in preventing families from risking their lives to advance desegregation. Only about one percent of black Southern children attended integrated schools until the Civil Rights Act of 1964 enabled the federal government to file lawsuits on these children’s behalf.
State-sponsored disregard of federal court orders, in other words, can only flourish in an environment where the rule of law does not apply — and this is why the Alabama Supreme Court’s gambit is likely to fail. Alabama has no shortage of flaws, but it is also no longer a haven of terrorism conducted in defense of discrimination. The plaintiffs in the Alabama marriage equality lawsuit are openly and proudly gay. Their names and faces can easily be found on websites associated with the litigation. Fear will not frustrate federal jurisdiction over marriage equality in the way that it prevented federal courts from enforcing Brown.
Which brings us back to the motion filed on Friday by attorneys representing the marriage equality plaintiffs. This motion seeks to do two things. It seeks to expand the plaintiffs in the Alabama lawsuit to include a class defined as “[a]ll persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex” who are denied that right due to Alabama’s marriage discrimination law, and it seeks to expand the defendants to include a class defined as “[a]ll Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages.” The practical effect of this motion, if it is granted, is that Judge Granade would have jurisdiction over every single probate judge in Alabama with respect to every single same-sex couple seeking to get married in the state. Her authority could no longer be thwarted by a procedural technicality.
Granade strongly hinted that she would grant such a motion weeks before it was filed. In an order handed down late January, Granade quoted with approval a Florida federal judge’s warning to officials in that state who threatened not to follow a marriage equality decision. State officials who refuse to comply with the Constitution, “should take note,” the Florida judge wrote, that “the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.”
It is likely, in other words, that the battle between supporters of equality and gay rights opponents in Alabama has reached its end game. Procedural technicalities may have succeeded in limiting the scope of Judge Granade’s orders up to this point, but it is very likely that she will soon have authority to end the state’s defiance once and for all.