Alabama, gay marriage and a long history of nullification

Alabama's Chief Justice Roy Moore ordered Sunday night that magistrates across the state were not to license or officiate at same-sex wedding ceremonies.

But Monday morning, the Supreme Court of the United States denied an Alabama writ for stay, letting stand Federal District Judge Callie V.S. Granade's earlier ruling that the state's ban on same-sex marriage was unconstitutional. So the "I dos" began ringing out in some counties, while others followed Moore's order.

In a letter to the state's probate judges, Moore wrote, "To ensure the orderly administration of justice within the state of Alabama, to alleviate a situation adversely affecting the administration of justice within the state ... 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 Article 1" — Alabama's prohibition of same-sex marriage.

Meanwhile, the possibility of a national ruling looms, with the Supreme Court due to decide on the issue before the end of June. And the justices may have tipped their hand. Dissenting from the court's denial of the stay, Justice Clarence Thomas wrote, "Today's decision represents yet another example of this court's increasingly cavalier attitude toward the states."

Is this a fight over same-sex marriage? Or state's rights? Or both? We asked a panel of experts for the Inside Story.

Inside Story: What is the mood like right now in Birmingham?

Allan Burton: It has been very positive all day. The probate judge’s office and staff have been extremely helpful. You can hear them cheering just now. That happens every time a couple comes out with certificate in hand. There were some protests early this morning, but when I came out 30 minutes ago, they were gone. Unfortunately, it was a group of African-Americans. Culturally, this is very akin to civil rights, but on a religious line, most African-Americans have really struggled.

Have you been incorporating any special rituals or liturgy in your weddings today?

We have been talking about each person’s commitment that they made originally — whether it be 18 years ago or two years ago. We have used their rings with what they were considered married. We have blessed them and allowed them to say vows to each other. I have recognized that what God has already blessed in their eyes is now recognized by the state of Alabama. I am trying to recognize the journey that they have been on and what is important in their marriage and is now legal in the state of Alabama.

When you speak to social conservatives in Birmingham and elsewhere, do you think they realize that you are marrying people who have been together for years?

No, I think it is something they have no concept of. Social conservatives mean religious conservatives in Alabama. The Bible Belt is tight around here. Where they go to is to sex itself and the act. They use words like "fornication" and "out of wedlock," and then it takes on even worse connotations because it is an act that they see as an abomination. I don’t think there is much a concept of longevity or sanctity or anything that would define it as close to what they experience in their own lives. I try to talk to them in terms that make sense to them, which is the Bible. I start with saying, "You proclaim that Jesus Christ hates this, but if you look at the Bible, Jesus said no word about it. He said nothing about it." They are taken aback because they do not realize that.

How will the Supreme Court rule? And what arguments will the justices entertain?

Elizabeth Wydra: So I think that it is very likely that the court will rule in favor of marriage equality just as other judges have ruled. I think that is because the Constitution is clear that states may not not apply the law [differently] to any person. That is any person — black or white, male or female, gay or straight. They are entitled to the same protections and rights. It is very difficult to deny these loving couples something so fundamental as marriage. All of the arguments on the other side — moral, religious and now these last-gasp states’ rights arguments — have all been rejected. I am confident they will be rejected as well.

That said, you could see Justice Anthony Kennedy saying banning same-sex marriage is a states' rights matter, just as allowing states to legalize gay marriage is a states' rights matter.

Justice Kennedy’s own precedents show that states are not free to ignore the equal protections given to citizens under the Constitution. States cannot contravene fundamental constitutional rights. That is why we put them in the Constitution in the first place. Justice Kennedy’s opinions have made clear that states cannot make Americans second-class citizens because of a desire to make them inferior to others. That is exactly the signal that states like Alabama are sending to same-sex couples — that they are second-class citizens.

Will this affect other areas of law where state law is in conflict with federal law?

The relationship between states and the federal government on constitutional rights were settled when our founders wrote the supremacy clause — that federal trumps state law in cases of conflict — and was reaffirmed during the Civil War. This certainly would not be breaking any new ground. It is a well-established relationship between the federal government and the states that for some reason Judge Moore wants to ignore.

Why do you believe Moore’s decision is legally correct?

John Eastman: This is not a repudiation of judicial ruling. It is an upholding of precedent. Baker v. Nelson upheld state marriage laws, and it is binding precedent, including state courts. A single federal ruling is not binding on state laws. They are bound by the existing Supreme Court precedent. The state court decisions are only bound by Supreme Court decisions, not lower federal court decisions.

Do you think the federal judge acted irresponsibly, then?

It is hard to say that, since so many others did the same thing. I think [she] improperly ignored binding Supreme Court precedent.

Do you believe it is a question of states’ rights or morality of the country at stake?

The Constitution does not define marriage one way or another. If some states want to experiment with a redefinition of marriage, it is legal, however foolish it is. It does not mandate that all 50 states participate in that experiment.

Could you see a ruling that is narrow enough to mandate legal gay marriage in all 50 states that does not legalize, let’s say, polygamy?

I do not know as a matter of any logical reasoning how you get there. Gender is much more intimately tied to marriage than the number of people involved in the institution. I do not know how if gender is thrown overboard, as a matter of honest logic, you do not see other issues being presented as well.