CREDIT: Supreme Court of Alabama
“Confusion reigns” in Alabama. The State Supreme Court issued a rambling decision Tuesday evening that not only enjoins state probate judges from issuing marriage licenses to same-sex couples, but also rules in favor of the state’s ban on same-sex marriage, though that question was not even before them.
In a 7-1 decision — Chief Justice Roy Moore abstained, though his position is clearly prevalent — the Court concluded that probate judges must continue to follow Alabama’s ban on same-sex marriage. “As it has done for approximately two centuries,” the Court concluded, ” Alabama law allows for ‘marriage’ between only one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law.”
The most important sentences in the decision may come from the dissent, issued by Justice Greg Shaw. “In an attempt to reduce confusion and to restore order,” he wrote, “the main opinion has deviated from certain principles of law that undermine its rationale for assuming jurisdiction of, and extending relief to, the petitioners here.” In particular, he asserted, “This Court does not have jurisdiction in this case,” not only because the case did not proceed from a lower court, but also because it addresses “instructing a State official acting in a nonjudicial capacity on how to perform a ministerial act.” In other words, it is an attempt to use judicial authority over something that does not fall under judicial authority via legal acrobatics.
After laying out various reasons the Court was improperly taking up the case, Shaw also pointed out, “This Court is addressing issues not presented.” The parties in this case were under the impression that the constitutionality of the marriage ban was not going to be addressed because the Court’s own orders suggested as much. Nevertheless, the Court took up the case even though it was not brought by the state, but by to two conservative groups who brought the original complaint “in the name of the State,” those being the Alabama Policy Institute and the Alabama Citizens Action Program.
The majority insisted that it had to take that step: “In order to determine whether the respondents are correct to now treat their ministerial duty as being altered or overridden by the United States Constitution, we must examine the reasoning of the federal district court’s decision.” It seemed, though, that they did so specifically out of sympathy for the probate judges. “Absent doing so,” they wrote, “we cannot resolve the dispute that exists in this adversarial proceeding; we cannot provide the relators the relief that they request and that the respondents oppose.”
The Court’s bias against same-sex marriage is evident throughout. Outlining the various laws that intersect with marriage recognition, the Court entertained the idea that state government offices might be confused about whether the “marriage licenses” (scare quotes included) should be recognized. “Every day, the recipients of those licenses and others with whom they interact may be, and presumably are, relying upon the validity of those licenses in their personal and business affairs,” the Court wrote. This somehow presents “a universe of novel derivative questions unprecedented in their multiplicity, scope, and urgency.” Why one marriage license might be interpreted differently from another — aside from opposition to same-sex marriage — the court doesn’t address.
After spending 50 pages justifying its authority over the case, the majority addressed same-sex marriage on its merits. Having heard no argument or received any briefing in the case, the Court relied on other decisions from around the country to arrive at its own staggeringly anti-gay position. Borrowing additional language from some of the most prominent opponents of marriage equality, the Court ruled that the ban was entirely constitutional. “Marriage,” the Court insisted, by definition means “a union between one man and one woman.” Thus, any other interpretation constitutes “the contemplated change in the definition,” “redefining the term… to mean something it is not,” and declaring “an entirely new concept of ‘marriage.'”
The Court also rejected the claim that the ban discriminates based on gender. “All men and all women are equally entitled to enter the institution of marriage,” they wrote. “Traditional-marriage laws do not discriminate on the basis of gender because all men and all women are equally restricted to marriage between the opposite sexes.” Had Loving v. Virginia, the U.S. Supreme Court case overturning bans on interracial marriage, followed such reasoning, it would have concluded that such bans do not discriminate on race because all whites and all blacks are equally restricted to marriage between the same race. That is not how it was decided.
Loving did assert that marriage is “a fundamental right,” and the Alabama Supreme Court concluded that the only characteristic of marriage to warrant that protection is that “marriage has always been between members of the opposite sex. The obvious reason for this immutable characteristic is nature. Men and women complement each other biologically and socially. Perhaps even more obvious, the sexual union between men and women (often) produces children.” The traditional definition, they argued, “focuses on the benefits to society from the special relationship that exists between a man and a woman, i.e., the effects for care of children, the control of passions, the division of wealth in society, and so on.”
The Court blithely ignored the possibility that same-sex couples might entertain the same concerns, let alone have children of their own. The very couple whose case first struck down Alabama’s ban is still fighting for adoption rights for their son. But according to the Court, “Even if preventing homosexuals from marrying will not increase the likelihood that children are born in wedlock, this does not address the fact that offering marriage solely to heterosexuals indisputably serves as a tool to prevent out-of-wedlock pregnancies.” In other words, bringing the children intentionally adopted or born to same-sex couples into wedlock is irrelevant, but protecting children born unintentionally by opposite-sex couples is an important goal of the state.
And the Court was confident that “although Alabama’s limitation of marriage to opposite-sex couples prevents homosexual couples from receiving marriage licenses, the laws do not do so for the purpose of singling out same-sex partners for disfavored status.” That’s because it sets up family structures and protects the children of opposite-sex couples. Ascribing that limitation “solely to hatred toward homosexuals is simply absurd on its face,” the Court concluded.
Despite its claim to to do the opposite, this decision creates more confusion in Alabama. The Alabama Supreme Court argues that it’s not bound by a federal district court’s decision, but nor does it have supremacy over it. Thus, there are now two conflicting legal precedents in the state. This is particularly evident because the federal court has also specifically ordered Mobile County Probate Judge Don Davis to issue licenses to at least four same-sex couples. The Alabama Supreme Court indicated that it will also draw its own conclusion as to whether Davis is bound by the federal order to issue licenses to other couples. In the meantime, Davis has stopped issuing marriage licenses to anybody.
Though halting the issuing of marriage licenses, the decision does not address the recognition of licenses. For as many “novel derivative questions” as government entities might have regarding these married same-sex couples, their marriages are hypothetically still legally valid.