Constitutional Confusion: Marriage Redefinition and the Rule of Law in Alabama


As the campaign to redefine marriage to include same-sex unions has swelled and is now awaiting an announcement from the Supreme Court in June, the laws of only a few states (fifteen as of this writing) have maintained the traditional view of marriage as an institution between one man and one woman. In recent months, the story of one state may be seen as a hiccup on the road to national sanctioning of marriage redefinition or perhaps as an example of what may happen in other states, depending on the Court’s ruling in Obergefell v. Hodges.

Since February, Alabama has repeatedly been featured in national headlines thanks to its activist judges and their work in the realm of marriage redefinition. The controversy surrounding their actions began with a lawsuit by a lesbian couple legally married in California that moved to Mobile, a mid-sized city on Alabama’s coast. Because their union was and is recognized as a legal marriage in California, the couple wished to adopt a child and filed a petition to do so in Mobile’s Probate Court. When, however, the probate judge denied the petition, the couple proceeded to sue the attorney general of the state, which was an unexpected decision given that probate judges of Alabama are responsible for issuing marriage licenses, whereas the attorney general lacks the legal authority to do so. On January 23, Callie Granade, the U S. District Judge for the Southern District of Alabama, issued an order declaring that state Attorney General Luther Strange was “enjoined from enforcing” Alabama’s statutory and constitutional bans on marriage redefinition. In other words, the state was forbidden from administering its centuries-old conception of marriage; the court essentially legalized same-sex marriage throughout Alabama. Judge Granade imposed a stay on the ruling, postponing it from going into effect until February 9, thereby giving a chance for higher courts to rule on the issue. However, the Eleventh Circuit Court of Appeals and the Supreme Court both declined to do extend the stay.

In their dissent to the Supreme Court’s decision declining a stay, Justices Antonin Scalia and Clarence Thomas observed that not issuing a stay essentially reveals the Court’s verdict on Obergefell, allowing a lower court to preempt their ruling by instituting what is in effect a final decision. One can imagine that if the Court rules against marriage redefinition in Obergefell after declining to issue a stay, it will create a legal nightmare. The decisions of numerous federal judges throughout the country will be overturned, thus invalidating the marriages of tens of thousands of same-sex couples. The culprit of this confusion will, of course, be activist federal district court judges who impatiently refused to stay their rulings until the Supreme Court decided the inevitable.

Chief Justice Roy Moore saw the loophole in Judge Granade’s order: her ruling applied specifically to the Attorney General of Alabama, not the State’s probate judges, who, unlike the Attorney General, actually have the power to issue marriage licenses. Justice Moore, known for his past refusal to comply with federal judges, had previously been removed from his post as Chief Justice by the Alabama Court of the Judiciary because of his refusal to remove a monument of the Ten Commandments from the Alabama Judicial Building after being ordered to do so by a federal U.S. District Judge in 2003. In 2012, Moore was re-elected to the bench with 52% of the vote. After previously publicly advising Governor Robert Bentley that Judge Granade’s order was not binding, Moore ordered probate judges across the State not to issue marriage licenses to same-sex couples on February 8, the day before the ban on same-sex marriage was to be lifted. His order noted, “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.” Though this order for the probate judges to refuse to issue marriage licenses to same-sex couples was valid, since it did not apply to the Attorney General as Judge Granade’s order did, it had ramifications that contradicted hers. Had it not been for Moore’s order, Judge Granade’s order would have resulted in a clear path for same-sex marriages to ensue.

However, these contradictory statements led to confusion on February 9, 2015, the day Judge Granade’s ruling was supposed to take effect. Forty-seven of the state’s sixty-seven counties issued marriage licenses to same-sex couples on the 9th or shortly thereafter, while the others either stopped issuing licenses altogether or issued them only to opposite-sex couples. One may ask how this variance is legally possible; whether it is or is not depends on how to interpret the confusing nature of the judges’ rulings. Alabama’s junior U.S. Senator Jeff Sessions critiqued this judicially caused confusion: “I think it’s an unhealthy trend that judges feel that they’re somehow reflecting popular opinion when first of all, it’s not popular opinion, and secondly, who are they to be ruling on cases based on how they feel?”

Both Sessions and Moore have been portrayed by “marriage equality” groups as modern-day George Wallaces, obstructing civil rights and defending a mandate that may reflect the views a majority of state citizens but which is still wrong at heart. And while Moore’s actions may have had some support from the democratically enacted laws already in the State Constitution, they still took the tenuous strategy of federal defiance; even Justice Thomas and Justice Scalia wrote in their dissent that states are obligated to comply with federal courts’ orders. But at the core of the issue is Judge Granade’s action of ordering Alabama’s rule of law to be nullified. By leapfrogging the Supreme Court, Judge Granade unconstitutionally waded into regulatory territory pertaining to the family, which even Justice Kennedy, striking down portions of the Defense of Marriage Act two terms ago in United States v. Windsor, declared that the federal (as opposed to the state) government had no interest in controlling. Adding to the problem is the Supreme Court’s inaction; by declining to straighten out the confusion itself, or even provide a temporary stay until it rules in June, the Supreme Court has allowed a legal mess to occur. In addition, it has prematurely indicated its ruling in the case of Obergefell. By refusing to issue a stay, the Court refused to give a clear and instant answer to the question, even temporarily.

After the initial confusion, the Alabama Supreme Court issued a ruling on March 3 in a lawsuit brought by two conservative groups, the Alabama Policy Institute and the Alabama Citizens Action Program, that stated that Alabama’s ban on same-sex marriage did not violate the U.S. Constitution. The 7 to 1 ruling declared that the plaintiffs had standing and ordered all probate judges to conform to Alabama law and deny marriage licenses to same-sex couples. Since that decision, no probate judges have issued marriage licenses to same-sex couples, though some counties (including Mobile County) have stopped issuing marriage licenses altogether until getting further clarification from a federal court. Though Alabama has reached a more unified decision, there is still a legal tension in the current situation, as throughout this whole episode.

The root problem of this confusion is with both Judge Granade’s and Kennedy’s arguments. Both the federal and state governments must use some definition of marriage. After ridding a state of its voter-approved, historical definition, what definition takes its place? What “rule of law” answers these fundamental questions? By assuming the role of referee, and abdicating the responsibility of replacing the laws she strikes down, Judge Granade leaves those lower-level state employees, such as probate judges, without a definition of the institution for which they are issuing state licenses.

This whole process is not unimportant or trivial. While the Supreme Court is widely expected to rule that many states’ definitions of marriage (as two people of the opposite sex) are unconstitutional, one can envision a turmoil similar to Alabama’s if the Court upholds the democratically-approved laws. This is why simply ridiculing Alabama and its judges as wrongheaded or bigoted is oversimplifying and mischaracterizing the real problem of the high court’s perpetuating legal confusion. When authority is in question anywhere, not just in Alabama, the hypothetical questions of who has the authority to say which laws are right and which can be enforced hit much closer to home. If this authority comes from judges, whose opinions may contradict, confusion on all sides may well ensue.

If there’s anything clear about this case, it is that little will be clear unless the Supreme Court unambiguously rules to redefine marriage. When judicial rulings contradict each other, as in this case, it is the citizens who suffer the dilemma that ensues. And if the Court rules against marriage redefinition in Obergefell, or hands down an ambiguous ruling, conservative states may find themselves in messy constitutional debates, with citizens and couples caught in the middle.

James Haynes is a freshman from Cullman, Alabama, tenatively majoring in the History Department. He can be reached at jh39@

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