In some press reports, it’s the 1960s all over again in Alabama. Fifty years after George Wallace stood in the way of civil rights, a new Wallace, in the person of State Supreme Court Chief Justice Roy Moore, is standing in the way of gay rights with a move to defy a federal judge’s order legalizing gay marriage. But the current, very temporary, impasse over marriage in Alabama is not the 1960s at all, but rather a screw-up of epic proportions — the combined effect of 1) a badly-designed lawsuit; 2) an overreaching federal judge; 3) an overreaching state Supreme Court chief justice; 4) a pair of misguided and misdirected court rulings; and 5) a state full of confused county officials. The kicker to the story is that the problem will be mostly, if not fully, resolved in a day or two, and besides, the U.S. Supreme Court will settle things not only for Alabama but the rest of the nation in June.
None of that has stopped journalists from declaring a return to the 1960s. “Roy Moore’s move to block gay marriage in Alabama is drawing comparisons to George Wallace’s ‘stand in the schoolhouse door’ in 1963,” wrote the Washington Post. “Long after George Wallace’s stand against integration in the schoolhouse door, to which Chief Justice Moore’s stance has been inevitably compared …” wrote the New York Times. “Moore’s 11th-hour effort to block gay weddings brought immediate comparisons to Alabama Gov. George Wallace,” wrote the Associated Press.
The angles were apparently irresistible. After all, this is Alabama, with the movie “Selma” playing in theaters and the 50th anniversary of the Selma-to-Montgomery march coming next month. But the reporting and the actual legal conflict going on bear little relation to each other. Talking to experts in Alabama and reading what legal analysts have to say about the case, it’s clear that the federal judge’s gay marriage order is so badly drawn as to be meaningless, while Moore’s legal analysis is essentially correct. Nevertheless, a relatively simple resolution — in favor of the pro-gay marriage forces — is likely coming within 48 hours or so. And on top of it all, the whole fight was unnecessary.
Many in Alabama were baffled when U.S. District Judge for the Southern District of Alabama Callie Granade issued an order Jan. 23 directing that state Attorney General Luther Strange “is enjoined from enforcing” Alabama’s statutory and constitutional bans on gay marriage. Just a week earlier, the U.S. Supreme Court had announced it will decide a set of gay marriage cases this session, meaning the marriage question will be definitively settled nationwide in just a few months. Why would Granade toss a bomb into the situation when it’s going to be resolved soon, anyway? Granade herself seemed to acknowledge that fact when she inserted a footnote into her order that read: “The questions raised in this lawsuit will thus be definitively decided by the end of the current Supreme Court term, regardless of today’s holding by this court.” What Granade didn’t answer was the question: OK, so why do this now? And if Granade insisted on going ahead, why not issue the order and at the same time issue a stay until after a higher court rules?
Whatever the reason, Granade went ahead. But her ruling, while sensational, didn’t actually mean anything. The lawsuit in question was brought by a lesbian couple who were married in California and wanted to adopt a child as a married couple in Alabama. They filed a petition to adopt in Probate Court in Mobile. The probate judge there denied the petition on the basis of Alabama’s ban on gay marriage.
The problem was, the plaintiffs sued only Luther Strange, the attorney general, who is an official of the executive branch. The attorney general doesn’t issue marriage licenses and doesn’t oversee marriages in the state. Elected probate judges in Alabama’s counties do that, and they do not work for the attorney general. In other words, Granade ordered the wrong guy to start issuing marriage licenses.
Moore saw that instantly. As head of the judicial branch, he ordered probate judges not to issue marriage licenses to gay couples. Moore’s order noted that, “the United States District Court for the Southern District of Alabama has not issued an order directed to the Probate Judges of Alabama to issue marriage licenses that violate Alabama law.” And indeed Judge Granade had not.
Of course Moore’s motive was to stop gay marriage in Alabama. Maybe he did it out of sheer anti-gay animus. But he had a point: If you’re going to order state officials to issue marriage licenses to gay couples, shouldn’t you direct the order to those state officials who are actually charged with issuing marriage licenses? That’s not the attorney general.
Granade herself seemed to acknowledge the problem when the plaintiffs came back to court to ask her to hold Don Davis, the probate judge in Mobile County, in contempt for closing his office rather than issue a gay marriage license. Granade declined to find Davis in contempt, conceding frankly that he was not covered under her order. “Probate Judge Don Davis is not a party in this case,” Granade wrote, “and the Order of January 23, 2015 did not directly order Davis to do anything.” Davis had not, after all the talk, defiantly defied a federal judge’s order.
So Granade had created a mess. Nevertheless, some probate judges in Alabama — the ones in the metropolitan centers of Birmingham, Montgomery and Huntsville — began issuing marriage licenses to gay couples. Other judges, mostly in rural counties, declined to issue gay marriage licenses. Still others stopped issuing any licenses at all. It’s not that all of them were taking a stand against gay marriage; some were just confused. The federal judge in Mobile said one thing, and the chief justice of the state Supreme Court said another, while the U.S. Supreme Court is promising a decision shortly. Several probate judges just wanted definitive guidance on what to do right now.
Meanwhile, some experts looked at what was happening in the case, and rather than pronouncing about George Wallace and schoolhouse doors, concluded that Moore had a point. “Roy Moore gets it right,” wrote Florida International University law professor Howard Wasserman of the widely read law blog Prawfs Blawg. Other analysts agreed. “Some legal scholars say that the chief justice may be correct in his interpretation of the immediate scope of the federal court’s rulings and how they apply to the probate judges,” the New York Times reported. “But his eagerness in pronouncing his views unnerved some in Alabama who feared that it might stir local judges to resist Judge Granade.”
So the core of the problem is that “some in Alabama” have been “unnerved” by Moore’s “eagerness”? That’s not much of a legal argument. The question is not whether Moore will prevail in the end — he won’t — but rather whether federal judges should be held to some standard when declaring state laws and constitutions invalid.
As it happens, there is another action in the works that will fix most, if not all, of the problem within days. After the ruling, the original plaintiffs got help from more experienced legal hands at the American Civil Liberties Union, and a fairly simple solution presented itself. Why not add Don Davis, the probate judge in Mobile who is refusing to issue licenses, as a defendant in the lawsuit? The new counsel have done just that, and a hearing is set for Thursday. If Judge Granade orders Davis to issue licenses, as most believe she will, that will be that; few in Alabama think Davis would defy a direct federal order.
Of course, such a ruling would apply only to Davis, but the message would be clear to any holdout judges around the state. If they don’t get the message, the ACLU will threaten them with court. Also, the addition of Mobile to the cities already issuing licenses — Birmingham, Montgomery and Huntsville — will mean that the state’s four largest cities, home to a majority of gays in Alabama, will have essentially legalized gay marriage.
Meanwhile, Moore will have few options. In his order, Moore suggested that probate judges who issue gay marriage licenses will be in danger of impeachment by Alabama Gov. Robert Bentley. But Bentley quickly issued a statement saying he won’t impeach anybody. “I am not going to put more pressure on [probate judges] by telling them that if they don’t do this or do that, that I’m going to bring impeachment charges against them,” Bentley said. “We will follow the rule of law in Alabama and allow the issue of same-sex marriage to be worked out through the proper legal channels.”
So the entire unnecessary episode is likely to be mostly over in a few days. And when the Supreme Court rules in June, when it is expected to make gay marriage legal nationwide, officials in Alabama, along with officials in Ohio and Michigan and the other states that still ban gay marriage, will go along. No matter what is playing at the movies, or what the newspapers say, it’s not the 1960s all over again.
