Home/Rod Dreher/Alabama vs. the Constitution

Alabama vs. the Constitution

Oh good grief:

Alabama became the latest state to allow same-sex marriageMonday, as many probate judges defied an order by the chief justice of the Alabama Supreme Court and began issuing licenses and performing weddings.

Earlier, the United States Supreme Courtquashed a final effort to delay the marriages as same-sex couples lined up at courthouses across the state.


Monday’s marriages came despite a dramatic show of defiance toward the federal judiciary. On Sunday night, Chief Justice Roy S. Moore of the Alabama Supreme Court ordered the state’s probate judges not to issue marriage licenses to gay couples.

“Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the Alabama Constitution or state law, the chief justice wrote in his order late Sunday.

This is bizarre. I don’t believe in same-sex marriage, and I don’t believe there is a constitutional right to it. Nevertheless, under our federal system, the US Supreme Court’s verdicts trump the verdicts of state supreme courts. Respect for the rule of law requires Roy Moore to stand down in this conflict. True, the ancient maxim holding that “an unjust law is no law at all” is valid, but as a general matter, we ought to have to clear a high bar to justify disobeying a law. Certainly the chief justice of a state Supreme Court behaves scandalously when he defies the US Supreme Court. He is not doing our side any favors. If I were an LGBT activist, I would rejoice that the Alabama chief justice is behaving this way.

UPDATE: Reader Irenist blisters my butt:

Kellerism! The whole NY Times story, on reflection, is pure Kellerism, Rod. And you fell for it! That’s how strong the NY Times prestige is. It’s not like you’re Dan Savage or something. You’re known in some quarters as more or less the opposite. But you still fell for it!

This from the NY Times may be misleading to some:

Earlier, the United States Supreme Court quashed a final effort to delay the marriages as same-sex couples lined up at courthouses across the state.

What that means is that the AL AG asked for a stay of the district judge’s order pending the results the appeal (to which the AG is entitled–circuit courts don’t grant certiorari like SCOTUS does) the 5th Circuit. The 5th Circuit declined to grant the stay, so the AG appealed to SCOTUS, which also declined to grant the stay. That’s all that is; what it is NOT is SCOTUS weighing in on the merits of the case, w/r/t constitutionality or anything else.

This from the NY Times is pure advocacy non-journalism, which Rod ought to be horrified by:

Some legal scholars say that the chief justice may be correct in his interpretation of the immediate scope of the federal court’s rulings and how they apply to the probate judges. But his eagerness in pronouncing his views unnerved some in Alabama who feared that it might stir local judges to resist [federal district] Judge Granade.

IOW, the NY Times, in a buried paragraph deep in the story, well after the heartwarming tales of couples marrying in AL, says, in effect:

Sure, Moore may be CORRECT AS TO THE LAW, but his FOLLOWING THE LAW might encourage others to FOLLOW THE LAW, which would be bad for the cause, and thus, not the proper Upper West Side thing to do. Hey, it’s only the law. We’re talking about something far more important than the law here. Who does he think he is? A judge or something? What’s with all this “law” stuff?

More Kellerism: The NY Times quotes from probate judges saying, in effect, “Hey, it’s a federal order. We have to follow it.” What the NY Times neglects to mention is that “probate judge” in the AL judiciary is kind of like justice of the peace elsewhere: it’s not a lawyerly job. Here are the requirements of the office, per the AL Secy. of State:

Must have resided in the district which candidate seeks to represent for one year prior to election. No one may be elected or appointed to a judicial office after reaching the age of 70.

Notice what’s not there? Being licensed to practice law, or even having a J.D.
IOW, Rod, these rogue probate judges don’t know anymore about Fed Courts precedential questions than most of the commenters on this blog. Yet the NY Times quotes them as if they were “judges” qua legal experts, without quoting any actual legal scholars pointing out how obviously correct Moore is on the non-binding nature of the district court judgement.

More Kellerism:

Despite Chief Justice Moore’s protests, some analysts see parallels between his arguments now and those Wallace advanced in his own time.

Protests? They’re legal arguments from the head of a state judiciary. They’re not “protests.” And you gotta love that “some analysts see parallels.” They have one analyst quoted beneath, but I’m still reading that as “I, the NY Times advocacy journalist, see parallels, and I’m hiding my advocacy behind weasel words.” This desperately needs a Get Religion fisking or something. Are you reading this thread, TMatt?

Result of all this Kellerism: Blue State America nods sagely over its organic fair trade coffee: “That dumb Southern redneck! Hates gay people, and is willing to break the law for it.” About a guy who is arguably the only voice in Alabama consistently navigating federalism properly.

And 20 years from now, that will still be the narrative: once these legends start, they stick around. Look at all the nonsense people still believe about the Crusades, Columbus, Galileo, the Inquisition, communist infiltration in the 1950s, etc. The Whigs always win. No matter how ridiculous their legends are. Sigh.

That’s a pretty great comment. Consider me chastened. I’m going to rethink this.

about the author

Rod Dreher is a senior editor at The American Conservative. A veteran of three decades of magazine and newspaper journalism, he has also written three New York Times bestsellers—Live Not By Lies, The Benedict Option, and The Little Way of Ruthie Lemingas well as Crunchy Cons and How Dante Can Save Your Life. Dreher lives in Baton Rouge, La.

leave a comment

Latest Articles