Thursday, February 12, 2015

What's going on in Alabama?

There's chaos in Alabama .  A Federal District Court Judge found their marriage ban unconstitutional.  Both the 11th circuit court of appeals, and the Supreme Court, refused to provide a stay.  However, there is some ambiguity how this decision, addressed to help a particular pair of couples, is now a proxy for the entire state.

Virulently anti-gay religious conservative Roy Moore (Chief of the state supreme court) demands that the probate judges who provide marriage licenses refuse those Godless homos. But a thoughtful piece in the NY Times blames this particular conflict on an unwillingness of the 11th circuit to do its job.

First, a review of what's happened elsewhere:
In some states, like Pennsylvania, the governor decided not to appeal, and gay marriage became legal more or less by default. In other states, like Wisconsin, an appeals court (in this case, the Seventh Circuit) stopped a district-court order from going into effect and then issued its own decision making gay marriage legal. This is a more orderly process. In fact, the Seventh Circuit stayed its own order pending Supreme Court review; only after the Supreme Court turned down an appeal in Wisconsin did marriage licenses start getting issued there in October. That meant there was no question about their legal validity. The same was true in states where gay marriage arrived via legislation, voter referendum, a federal appeals court or a state supreme court ruling based on the state constitution. In all those scenarios, no question lingers about what the law is or who is in charge.
Okay, when federal courts at the upper levels rule, that becomes binding.  So why is this different? In Alabama, the federal district court judge Granade
...struck down the state’s ban on gay marriage on Jan. 23 with a 14-day stay, to allow the state time to appeal. The 11th Circuit refused to step in and stop her order from going into effect.

“Maybe the 11th Circuit said, We might as well let marriage go through because we all know that’s how this will come out in the end,” Wasserman said. After all, the Supreme Court let many other judges legalize gay marriage without intervening, and then in January agreed to hear an appeal from the sole federal appeals court that has upheld gay marriage bans. The 11th Circuit could be forgiven for assuming that most of the justices aren’t with Roy Moore on the merits here.

The problem is that this kind of anticipatory thinking practically invites the kind of chaos we’ve seen this week. Because this time, unlike in Utah, the Supreme Court refused to stay the district court’s order too. .... The court is creating, or allowing lower courts to create, facts on the ground that favor one side in the gay-marriage case it has agreed to hear. There’s no constitutional rule that requires the Supreme Court to go along with the rising number of states that have legalized same-sex marriage. But the momentum starts to seem inexorable. And to the extent the Supreme Court is encouraging this, it’s not really a good thing, because courts aren’t supposed to tip their hands in advance of ruling. The definition of justice, after all, includes giving the parties a fair and open-minded hearing.


Wasserman couldn’t think of a precise historical parallel to the weird stand-off in Alabama, and neither can I. But it’s not fair to say that Roy Moore is acting like George Wallace. When Alabama’s segregationist governor blocked the entrance of the University of Alabama in 1963, in defiance of court-ordered integration, he was standing in the way of the Supreme Court and its desegregation ruling in Brown v. Board of Education nine years earlier — as well as a federal injunction ordering the university to admit two black students. In that case, the Supreme Court absolutely had the power to tell Alabama what to do, because it is the Supreme Court. But Judge Granade is not. And so far, at least, her order doesn’t even clearly apply to all of Alabama’s (understandably confused) probate judges. If that changes — a hearing has been set to sort this out — then they’ll know for sure it’s time to start signing marriage licenses.

In the meantime, you might even argue that Moore has done the country a favor, by making us think about the various methods for changing the law, and which are better — or at least more orderly — than others.
Only about 30% of the counties in AL are providing licenses.  Suits are now being brought in  to enforce this decision.  Argument in the Supreme Court on marriage equality nationwide are scheduled for April with a decision expected in June.

Meanwhile, the KKK has come out in support of Roy Moore.  Nice bedfellows.

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