The deputy attorney general of the United States brought an order from a federal district court judge with him to Tuscaloosa on June 11, 1963, to desegregate the University of Alabama. Gov. George Wallace stood in the schoolhouse door that day, but gave way after Nicholas Katzenbach brandished the judicial order, backed up by U.S. marshals and later the federalized Alabama National Guard.
The judge who issued that order was no integrationist. Years earlier, Judge Seybourne Lynne had dissented in 1956 from the ruling that forced the desegregation of Montgomery’s all-white bus line. In the same year, he also refused to empanel a grand jury to consider federal civil rights charges in the deaths of three black ministers, according to Lynne’s 2009 obituary in The New York Times.
Despite the poor record on racial justice, Lynne knew the law and the U.S. Constitution. “The governor of a sovereign state has no authority to obstruct or prevent the execution of lawful orders of a court of the United States,” Lynne wrote in an opinion that he had drafted in pencil on legal paper.
Five decades later, however, Alabama’s chief justice is doing all that he can to obstruct the lawful order of a federal court to allow gay and lesbian couples to marry in the state. U.S. District Court Judge Callie Granade ruled in January that the state’s ban on same-sex marriages violates the U.S. Constitution’s Equal Protection Clause. But in a six-page order the day before Granade’s ruling was to take effect, Moore directed probate judges in the state’s 67 counties to ignore it.
For the ostensible purpose of ensuring “the orderly administration of justice,” Moore created chaos in his Feb. 8 order by directing probate judges to follow the opposite-sex definition of marriage that voters had put into the state constitution in 2006. Over the next few days, judges in some counties issued marriage licenses to same-sex couples, but most did not.
Moore went on national television to explain his action. “What one lone judge in Alabama federal court says is not law,” Moore said in a contentious, 25-minute interview with CNN’s Chris Cuomo on Thursday [Feb. 12] “If it were the law, then the U.S. Supreme Court wouldn’t be meeting to determine this thing in April through June.”
The Supreme Court, of course, is set to hear arguments in late April in cases challenging bans on same-sex marriages in four states: Kentucky, Michigan, Ohio, and Tennessee. But Alabama Attorney General Luther Strange struck out at the Supreme Court when he asked the justices to block Granade’s ruling from taking effect.
Two justices, Antonin Scalia and Clarence Thomas, dissented from that decision issued on Monday morning [Feb. 9]. But Thomas’s written dissent makes clear that the other justices recognized they were allowing same-sex marriage to become law in Alabama. Thomas said he “would have preserved the status quo” until after the court’s ruling, but he and Scalia were outvoted.
The Supreme Court’s handling of the marriage issue has been subject to criticism ever since the justices refused on the First Monday in October to hear states’ appeals in several cases seeking to reinstate same-sex marriage bans. The court’s “acquiescence,” to use Thomas’s term, has allowed marriage equality for gay and lesbian couples to become law now in 37 states without a definitive ruling. It is no wonder that Thomas surmised that the majority’s inaction may be “a signal of the Court’s intended resolution” of the issue.
Still, the Supreme Court is the nation’s highest court, and a federal court has the Constitution’s Supremacy Clause behind it when it rules a state law unconstitutional. However many times Moore repeats his mantra “Her opinion is not the law” Judge Granade’s ruling is in fact the law unless overruled by a higher federal court. No state court has that authority, much less an individual state justice.
Moore had the thinnest fig leaf of civil procedure on his side when he said that Granade’s order enjoined the state’s attorney general from enforcing the same-sex marriage ban; the state’s probate judges were not named. Granade destroyed that point later on Thursday [Feb. 12] when she issued a new injunction specifically ordering the probate judge in Mobile not to prevent same-sex couples from marrying.
By the end of the next day, most of the state’s probate judges 51 of 67, by one count had decided to comply. But eight judges responded with a last-ditch petition to the Alabama Supreme Court seeking an order that they continue to deny marriage licenses to same-sex couples. The state justices agreed to consider the petition, but two dissenting justices called the move unprecedented and procedurally improper.
When he ordered the University of Alabama desegregated, Judge Lynne acknowledged that Alabamians disagreed about the issue. “I know many of both races are troubled and like Jonah of old, are ‘angry even unto death,’” he wrote. “My prayer is that all of our people, in keeping with our finest tradition, will join in the resolution that law and order will be maintained.”
Alabamians are divided on same-sex marriage, with two-thirds opposed, according to polls. Many undoubtedly agree with Moore that a divine order is being upended. But many others will wonder why their state’s highest judge would choose to obstruct instead of obey the law.