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“Alabama’s Dangerous Defiance”: A Disturbing Line Of Thinking In The History Of American Federalism

On Tuesday the Supreme Court of Alabama prohibited the state’s probate judges from issuing marriage licenses to same-sex couples. This decision effectively throws down the gauntlet, challenging the federal courts to make earlier federal rulings stick — including last month’s refusal by the United States Supreme Court to stay a federal judge’s decision requiring the state to recognize same-sex marriages. It draws on a disturbing line of thinking in the history of American federalism, one that, were it to gain currency as a model, could compromise our entire system of law.

The court’s position is that under the Constitution, it does not have to follow the rulings of lower federal courts; in its ruling, it promises to “defer only to the holdings of the United States Supreme Court.” (That said, Chief Justice Roy Moore’s public statements have been more equivocal; he told a radio host in Birmingham, Ala., “It would be a very hard decision, because I know there’s nothing in the U.S. Constitution that authorizes the Supreme Court of the United States or any federal court anywhere to misinterpret the word marriage.”)

Such extreme states’ rights positions first appeared during an epic battle between the great chief justice John Marshall and Spencer Roane, a member of the Virginia Court of Appeals. The two were bitter political and ideological enemies in the early years of the republic, and Roane had long railed against the authority of the federal Supreme Court over state courts. He repeatedly declined to implement federal decisions with which he disagreed, and refused to recognize the authority of federal courts to review state court rulings. In the end, however, Marshall prevailed.

And yet extreme states’ rights have been asserted more often in political rhetoric than in judicial proceedings. Even in the period of Southern “massive resistance” to Brown v. Board of Education, the Supreme Court’s 1954 desegregation decision, state supreme courts did not try to interpose their own interpretations of the Equal Protection Clause or issue conflicting injunctions against state officials to block desegregation orders by lower federal courts (though some state legislatures did attempt to block Brown’s implementation).

Since the United States Supreme Court will rule on gay marriage in June, it’s easy to dismiss the Alabama court’s ruling as quixotic. But it raises a real issue: not what state courts can do, but rather what they should do. Because state and federal courts operate on entirely separate tracks, the state court’s position that it need not follow lower federal court rulings is technically correct. Yet if our judicial system is to function smoothly, both court systems must, from time to time, refrain from exercising their legal discretion to ignore the other’s handiwork.

The gay-marriage rulings bring this aspect of the state-federal relationship, called comity, into close focus. Alabama’s probate judges are subject to the jurisdiction of both state and federal courts. If both judicial systems exercise their authority concurrently and independently, issuing conflicting constitutional rulings, the probate judges are caught in a Catch-22. Respecting one court’s order necessarily will involve a failure to respect the other’s.

This isn’t just about state courts bowing to federal authority; federal courts have a number of “abstention” doctrines designed to respect the autonomy of state courts. The most famous, called Younger abstention, provides that federal courts should not intervene in pending state court criminal proceedings — even if a credible allegation of a federal constitutional violation exists.

In turn, state courts will often extend comity to the decisions of the local federal courts. Although state courts are not bound by lower federal court decisions, state officials are required to follow federal court orders (this distinction probably explains, at least in part, the willingness of state courts to voluntarily follow lower federal court precedents).

Gay marriage is exactly the sort of issue on which state courts should — and do — defer to lower federal courts. Five federal appellate courts have recently decided whether the Constitution requires a state government to recognize same-sex marriage: Four said yes; only the Sixth Circuit has held that they need not do so. The state courts and governments within these circuits have all acquiesced (Alabama is in the 11th Circuit, which has not ruled on the issue). In fact, Alabama’s State Supreme Court is the only one in the country to go to war with the local federal courts on the issue.

If State Supreme Courts followed the Alabama Supreme Court’s lead, a system of dual courts simply would not work. The United States Supreme Court, which hears only 80 to 90 cases per year, would not be able to disentangle the legal morass that would result if state courts routinely thumbed their noses at the decisions of their local lower federal courts.

Chief Justice Marshall observed, “If the legislatures of the several states may at will annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.” This holds just as true if state courts exercise an identical nullification power over federal court orders.

The Alabama Supreme Court’s action represents an unfortunate departure from the cooperative norm that must prevail between these independent judicial systems. Other state judiciaries would do well not to follow its example.

 

By: Ronald J. Krotoszynski, Jr, Law Professor at the University of Alabama; Op-Ed Contributor, The New York Times, March 6, 2015

March 10, 2015 Posted by | Alabama Supreme Court, Federal Judiciary, Roy Moore | , , , , , , | Leave a comment

“Locked Doors And Shuttered Windows”: About Those Judges Joining Roy Moore In His Rebel Yell

Nobody familiar with Alabama Supreme Court Chief Justice Roy Moore was the least bit surprised by his defiance of both federal district court and U.S. Supreme Court directives that Alabama begin licensing same-sex marriages. The man’s made an entire career out of such gestures, based not only on early nineteenth-century notions of state’s rights and even older (yet evergreen) theocratic principles.

But it might be more surprising that a majority of probate judges in Alabama are at least temporarily going along with Moore’s rebel yell, either refusing to license applicants for same-sex marriages or even closing their doors yesterday, per a report from WaPo’s Sandhya Somashekhar:

On the day that same-sex unions became legal in Alabama, local officials in dozens of counties on Monday defied a federal judge’s decision and refused to issue marriage licenses to gay couples, casting the state into judicial chaos.

Gay couples were able to get licenses in about a dozen places, including Birmingham, Huntsville and a few other counties where probate judges complied with the judge’s decision. The U.S. Supreme Court ruled early Monday that it would deny Alabama’s request to put the marriages on hold.

But in the majority of counties, officials said they would refuse to license same-sex marriages or stop providing licenses altogether, confronting couples — gay and heterosexual — with locked doors and shuttered windows.

What’s up with these probate judges? Are their law school professors hanging their heads in shame at this rather blatant defiance of the Supremacy Clause?

Well, that’s hard to say because Alabama does not require probate judges to have any sort of legal education (that’s true in my home state of Georgia as well). It’s also one of thirteen states where probate judges are elected in partisan primaries and general elections. I cannot find a current breakdown of the partisan composition of Alabama’s probate judiciary, but given the overall political complexion of the state it’s a good bet a majority are Republicans. With the state’s Republican governor and most famous Republican jurist calling for defiance of the feds (though Gov. Robert Bentley has made it clear he won’t punish any judge that differs with him on this), what would you guess they’d do? Yeah, that’s what I thought, too.

 

By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, February 10, 2015

February 11, 2015 Posted by | Alabama Supreme Court, Marriage Equality, Roy Moore | , , , , , | Leave a comment

   

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