Alabama began issuing marriage licenses to same-sex couples Monday. Well, parts of Alabama, anyway.
Similar to the preceding legalization of same-sex marriage in Florida, the one in Alabama is highly contested — and may have implications for an impending Supreme Court decision this summer.
Federal courts struck down the state’s ban on same-sex marriage Jan. 23. When the 11th Circuit Court of Appeals and the Supreme Court did nothing to extend a hold on the decision due to end Monday, same-sex marriage became de facto legal in Alabama.
The decision isn’t coming easily, though. In the final hours of Sunday, Alabama Supreme Court Chief Justice Roy Moore sent a decree out to all of the probate judges in the state barring the judges from issuing or recognizing marriage licenses to same-sex couples. Alabama judges are caught in a quandary: refuse to marry couples and flout federal court decisions, or issue licenses and defy a direct order from the most powerful state justice.
So far, 52 of Alabama’s 67 counties are following Moore’s orders and aren’t issuing licenses. Compare that to the 13 of Florida’s 67 counties that initially refused to hold weddings in their courthouses. These decisions certainly reflect Alabama’s temperament toward same-sex marriage — but there’s a legal case to be made here. Yes, Moore described homosexuality as “inherently evil” in a 2002 court decision, but that particular view isn’t the official reason he issued his order. That’s to say, he’s not basing his legal argument on moral fervor and the threat of hellfire. Rather, it’s a legal challenge to what he sees as the federal government’s overextension into state jurisdiction.
Alabama is continuing its ancient legacy of invoking state powers to defend existing hierarchies from federal efforts to change them, culminating in 1963 when Gov. George Wallace literally stood in the way of the first black students to attend the University of Alabama during desegregation. Then, as now, the state’s rights were praised in contrast with those of power-hungry federal organs. That Alabama has put up the most obstinate resistance to same-sex marriage so far should surprise no one.
It’s the state’s residents who have to deal with life in legal limbo, suspended between conflicting mandates. Same-sex marriage, in theory, is simultaneously legal and banned while its effective legality depends on the discretion of the local judge.
In theory, the Supreme Court could extend the hold on the decision. Doing so would postpone legalization — and create the chaos we’re seeing now — until it makes a national decision on same-sex marriage. The court will start hearing cases in April, so Alabamians wouldn’t have too long to wait before a national constitutional decision is made.
But the Supreme Court isn’t postponing the decision, which we, as well as others, see as a sign that it will rule in favor of same-sex marriage this summer. While the situation in Alabama right now is less than ideal, it suggests a favorable decision from the highest court in the land — and we’re OK with that.
[A version of this story ran on page 6 on 2/11/2015 under the headline “Alabama limbo good sign for nat’l marriage equality"]
