My newest column on AlterNet is up, Right-Wingers’ Secession Threats: Fighting Tooth and Nail on the Wrong Side of History. It’s an expanded version of my earlier post on Roy Moore and other social conservatives arguing that they shouldn’t have to obey laws they don’t like. Here’s an excerpt:
When a U.S. federal judge – an appointee of George W. Bush, no less – ruled in favor of marriage equality in Alabama, Judge Roy Moore didn’t take it lying down. The chief justice of the state supreme court in this reddest of red states immediately blasted out this furious letter to all the state’s probate courts, which issue marriage licenses, ordering that “no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the state’s same-sex marriage ban…
But this story isn’t finished yet. Just after I submitted the completed version of this column to AlterNet, there was a new and even more astonishing development.
As I wrote previously, when a federal judge ruled for marriage equality in Alabama, Roy Moore ordered the states’ probate courts to ignore the federal court ruling, whereupon U.S. Judge Callie Granade directed them to ignore Moore’s illegal order and resume giving out marriage licenses, which most did. I had thought that was the end of it and that the few remaining holdouts would eventually give in. But last week, the rest of the Alabama Supreme Court blew the story wide open again with an even more brazen act of defiance:
The Alabama Supreme Court on Tuesday night ordered probate judges around the state to stop issuing marriage licenses to same-sex couples, ruling in direct opposition to a federal judge that the state’s ban on same sex marriage did not violate the United States Constitution.
In a 7-to-1 decision, the court ruled that “Alabama law allows for ‘marriage’ between only one man and one woman,” and that the state’s probate judges “have a ministerial duty not to issue any marriage license contrary to this law.”
…In the decision, the judges insisted they could “interpret the United States Constitution independently from, and even contrary to, federal courts,” and did just that.
Many other red states have accepted marriage equality, maybe with some grumbling and foot-dragging; but to my knowledge, Alabama is the first to directly defy a federal court. This is a blatant attempt to provoke a full-blown constitutional crisis, using exactly the same nullificationist logic that was used to resist desegregation and other civil rights measures. Alabama’s government seems hell-bent on summoning up the darkest ghosts of its history – right around the 50th anniversary of the civil-rights march at Selma, no less. It’s as if they’re trying to invite the comparison between their actions now and then.
You can tell the Alabama court was trying to have it both ways. They argued, first, that they would only obey a ruling from the Supreme Court itself, not lower federal courts; and second, that they would also fight the Supreme Court if it handed down a ruling they didn’t like:
In the decision, the judges insisted they could “interpret the United States Constitution independently from, and even contrary to, federal courts,” and did just that. They took on not just Judge Granade’s ruling point by point but also took issue with the United States Supreme Court’s ruling striking down parts of the federal Defense of Marriage Act in 2013.
On a purely tactical level, it’s impossible to see the sense of this. Do the Alabama justices think that it improves their chances at the Supreme Court for them to thumb their noses at the entire federal judicial system? Do they think this insolence and defiance increases the odds of a ruling in their favor? In fact, as Noah Feldman points out, they directly attack and insult the legal rationale cited by Justice Anthony Kennedy – a fantastically dumb thing to do if you’re trying to get the swing vote on your side:
The most gratuitous part of the opinion – the one that gay-marriage opponents may live to regret – is the attack on Justice Anthony Kennedy’s opinion in Windsor, which struck down the Defense of Marriage Act. The Alabama court is bound by Windsor’s logic, because it comes from the U.S. Supreme Court. Yet the Alabama court trashed the principle of equal dignity on which Kennedy relied. Equal dignity isn’t mentioned in the Constitution, the Alabama court insisted. The principle, it claimed, is nothing more than a proxy for imposing federal judges’ personal views.
But the looming question is what happens if the Supreme Court rules for marriage equality nationwide (as it seems increasingly likely it will) and Alabama’s government refuses to obey. Would we go back to the bad old days of federalizing the National Guard to move defiant state officials out of the way? Would President Obama really send in U.S. marshals to force the state probate courts to open their doors and stand over their shoulders while they issue marriage licenses?
I wonder if that’s what this decision was intended to accomplish: to persuade the Supreme Court to back down by stating ahead of time that Alabama will defy an unfavorable ruling, in the hopes that the court won’t risk such a direct test of their authority. If so, it’s an incredibly reckless strategy. They’re bringing the country to the edge of schism, merely for the sake of denying equal rights to LGBT people – something that doesn’t affect the rest of us in any way. But of course, this assumes that the Alabama conservatives value the stability of the American political order above all else, which may not be true. It may well be that they’d rather see the bonds of law snapped than live in a country where they can no longer dictate what rights others will have.