Madison County, Ala., was one of the few in the state to issue marriage licenses to same-sex couples last month.Photo by Flickr user Shannon
Economic sanctions are often seen as an alternative to the use of force against aggressive or abusive foreign powers. The approach often fails, as it has with Cuba, but occasionally it succeeds in bringing recalcitrant parties to negotiations, as with Iran.
So would economic sanctions help bring the rule of law back to Alabama?
It might be worth a try. We fought a civil war over the issue of states’ rights and slavery. A century later there were violent assaults against civil rights marchers in Birmingham, Selma and elsewhere. Most of us thought the issue of federal supremacy in the civil rights sphere was long since settled, but apparently the news never reached Montgomery.
The Supreme Court of Alabama has declared that there are only nine jurists in the world to whom it must defer - and then only grudgingly. The lower federal courts, it claims, have no power to interpret the federal Constitution in ways that bind the officials of that great state, particularly not when the subject is same-sex marriage.
The claim originates with the court’s chief justice, Roy Moore. After a federal judge in Mobile struck down the state’s ban on same-sex marriages, Moore urged Alabama’s probate judges not to comply with it. In an order of his own, Moore claimed that the federal judge, Callie Granade, did not have the power to rule on a state’s definition of marriage. In an interview, Moore conceded - sort of - that the U.S. Supreme Court’s eventual decision can bind state officials in the case of same-sex marriage, “but [the Court] can’t force a constitutional officer to disobey his oath by performing one.”
Moore’s position essentially threw the state into confusion. Some counties refused to issue marriage licenses to same-sex couples and some complied with Granade’s ruling. The vast majority stopped issuing marriage licenses entirely for a time. The U.S. Supreme Court rejected Alabama’s request to stay same-sex marriages in the state until the high court’s own ruling, which is expected later this year.
Not to be deterred, the Alabama Supreme Court went a step further last week, ordering probate judges statewide to stop issuing marriage licenses to same-sex couples, in direct contradiction to the federal court decision. (Moore recused himself from the ruling; six justices approved the decision, with one concurrence and one dissent on jurisdictional grounds.)
Lawyers for a collection of gay and civil rights groups then filed a motion with Granade, asking the federal court in Mobile to force probate judges back into issuing marriage licenses to same-sex couples despite the state Supreme Court’s order. The motion asked Granade to name all couples wishing to marry in Alabama as additional parties to the suit in order to counter the state’s argument that the federal court ruling applies only to the individuals who brought the initial challenge. Alabama’s attorney general was among those urging the federal court to deny the request.
Dean Lanton, a man who had planned to marry his partner in Birmingham in August, described the situation by saying, “It’s just Alabama politics, deja vu from the 1960s.” Ronald Krotoszynski, a professor at the University of Alabama School of Law, told The Washington Post that Moore “may sincerely believe state law takes precedence over federal law,” but “if that’s so, it’s unfortunate because it’s plainly wrong.”
This show of defiance from Montgomery is a throwback to another era, one that most of the country had hoped was over.
Except that we can recall that some liberal justices on the U.S. Supreme Court invited Montana to disregard the Citizens United decision just a few years ago - an invitation they may now have cause to regret. All federal courts are entitled to deference and obedience in applying the federal Constitution’s protections. This is arguably even clearer with Citizens United that it is with United States v. Windsor, in which the Supreme Court struck down the Defense of Marriage Act but did not unequivocally mandate same-sex marriage nationwide. Still, any confusion caused by Windsor can’t hold a candle to the pandemonium caused by the continued resistance out of Alabama.
As we await a definitive Supreme Court decision that is likely but by no means certain, the question now is what to do about Alabama’s defiance of the federal courts. Even though sanctions rarely work as an instrument of policy, in this case they may be exactly what is called for. Congressional Republicans, as well as Democrats, ought to fall solidly behind financial penalties for Alabama as long as its courts refuse to abide by the lawful rulings of a federal judge interpreting the U.S. Constitution. This is not a matter of legislators’ position on marriage, but rather a matter of preserving the rule of law. It not a battle we want settled in the streets. With enough financial cost, it is reasonably likely that the citizens of Alabama will bring their own courts to heel.
The principle of respect for the rule of law is just too important to leave to the whim of a handful of judicial holdouts who seem not to realize that this year is neither 1865 nor 1965.