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Federalism “On Fleek” or Fifty Separate Fiefdoms? State Chief Justice Says Obergefell Is Not the Law in Alabama

A recent, public clash between the highest legal authorities of the United States and one of its constituent states, Alabama, illustrates the promise and the problems of this country’s unique system of dual sovereigns, known as federalism.

At the core of the conflict is Obergefell v. Hodges,[1] in which the U.S. Supreme Court held last June that same-sex couples have a fundamental right to marry. To vindicate that right, the Court concluded, the Fourteenth Amendment to the Federal Constitution requires that each state expressly allow same-sex couples to marry and recognize same-sex marriages that are lawfully licensed and performed in other states.

Last month, in direct violation of Obergefell, Chief Justice Roy S. Moore of the Alabama Supreme Court ordered Alabama probate judges to continue denying marriage licenses to same-sex couples under that state’s pre-existing ban on same-sex marriage. Noting that the state high court had upheld the ban just three months before Obergefell, the Chief Justice declared that probate judges remain duty-bound to follow the court’s decision until it adjudicates Obergefell’s impact on Alabama law. “As it has done for approximately two centuries,” the court pronounced in Ex Parte State of Alabama, “Alabama law allows for ‘marriage’ between only one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage licenses contrary to this law. Nothing in the United States Constitution alters or overrides this duty.”

The Chief Justice’s January order marks the second time that he has defied federal authority on this issue. The first time occurred a little over a year ago, when District Judge Virginia Granade of the U.S. District Court for the Southern District of Alabama held that the state’s ban on same-sex marriage was unconstitutional. The Chief Justice responded by telling Alabama probate judges that they were not bound by Judge Granade’s order, which she reaffirmed once in May 2015 and again after Obergefell in June. In 2003, a state ethics panel unanimously ousted the Chief Justice from the bench for flouting a federal order to remove a large monument of the Ten Commandments from a state judicial building. He returned to the bench in 2012 after being re-elected.

In explaining his most recent stance, the Chief Justice sometimes has conceded that Obergefell binds state courts. On those occasions he has insisted, however, that Obergefell’s holding is limited to Michigan, Kentucky, Ohio, and Tennessee, whose same-sex marriage laws actually were before the Court, and does not extend to Alabama. Yet the Chief Justice admits that he “[is] not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on the existing orders of the Alabama Supreme Court.” “That issue,” according to the Chief Justice, remains before the entire court, “which continues to deliberate on [it].

“Confusion and uncertainty” persist among Alabama probate judges in the meantime. How the state high court ultimately will rule on the issue, and whether further resort to the U.S. Supreme Court will be necessary to settle it once and for all, remains to be seen.

Gadson William (Will) Perry

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