Supreme Court hints from same-sex marriage in Alabama

February 10, 2015

Supreme Court LGBTIn case you hadn’t been following along, there’s been quite the legal drama taking place in Alabama over the past 48 hours.

It all began on January 23, 2015, with a ruling by Judge Callie Granade of the U.S. District Court of the Southern District of Alabama that struck down Alabama’s laws banning same-sex marriage.

On January 25, Judge Granade stayed enforcement of the order until February 9 to allow Attorney General Luther Strange to petition for a longer appeal from the Eleventh Circuit Court of Appeals.  On February 3, the Eleventh Circuit rejected the attorney general’s request to extend the stay pending appeal, and Alabama appealed to the Supreme Court.

Before the Supreme Court responded, Chief Justice of the Alabama Supreme Court Roy Moore issued an order late Sunday night to the state’s probate judges – the officials charged with issuing marriage licenses – to refuse to comply with the federal court’s order, which Moore described on January 27 as “desecrate[ing] the institution of marriage.”

If the name “Roy Moore” sounds familiar to you, it’s probably because this is the same chief justice that installed the 5,280-pound granite monument of the Ten Commandments in the Alabama State Judicial Building, then was later removed from his position after he flouted a federal order to remove the monument (if you’re wondering how he’s back in the same position, he won reelection in 2012).

Given his history, it should come as no surprise that Moore would once again ignore the Supremacy Clause in favor of his own religious convictions.

In spite of this order and Moore’s threats of retaliation against those who disobey, several counties (at least seven, by some reports) began issuing marriage licenses yesterday morning after the U.S. Supreme Court refused to stay the order earlier that same morning.

There are a number of points of consequence that emerged after the dust settled.

First, in Alabama, despite the refusal of Moore and many of the state’s probate judges to comply with federal law and issue marriage licenses to same-sex couples, same-sex marriage is officially recognized in the state of Alabama.  It may take longer than normal for some officials to come to terms with this reality, but the state is undeniably now the 37th to cross this threshold.

More importantly, at least on a national scale, is the decision by the U.S. Supreme Court to refuse Alabama’s request for a stay.

In determining whether to grant a stay, courts look at whether the petitioning party is likely to succeed on the merits.  Although there are other factors, the petitioner’s likelihood of success is a central one.

Historically, states have been fairly successful in obtaining stays from the Supreme Court in cases in which their laws had been struck down by lower courts.  The Court even stayed enforcement of rulings striking down state same-sex marriage bans – that is, until the past October when the Court refused to review the swath of same-sex marriage cases that were seeking review by the high court.

The order lifted the various stays affecting a number of states, which effectively legalized same-sex marriage in those states.  Ever since, the Court has routinely refused to grant stays relating to same-sex marriage bans being struck down.

This change didn’t go unnoticed by Justice Clarence Thomas, who dissented from the Court’s order yesterday to refuse Alabama’s request for a stay.  Thomas, joined by Justice Scalia, wrote that this refusal “may well be seen as a signal of the Court’s intended resolution of [the same-sex marriage constitutional] question.”

Thomas, of course, is referring to Bourke v. Beshear, in which the Court will resolve the question of whether the U.S. Constitution permits the states to ban same-sex marriage.

And Thomas is absolutely correct: this decision is undoubtedly a signal of the Court’s intended resolution of this question.  After all, if there was any doubt as to how the Court is going to rule in Bourke, the Court wouldn’t continue allowing state after state to marry same-sex couples, since even the possibility of reversal would raise significant legal questions about the status of those marriages.

In other words, the Court just told us how they’re planning to rule later this term.

While we don’t know the exact distribution of the justices (though we know Thomas and Scalia are certainly going to be dissenting), it would be a considerable shock if the Court didn’t rule that the Constitution prohibits states from banning same-sex marriage.