Sweet home Alabama: State’s rights and constitutional wrongs

    There’s an old joke that Pennsylvania is a state with two big cities and “Alabama” in between.

    Perish the thought! Goof on our midstate region if you must, but please don’t insult us by invoking Alabama.

    The sweet home of George “Segregation Now, Segregation Forever” Wallace has reverted to type this week. As history shows us, Alabama doesn’t do progress very well, so it’s no surprise that its top jurist is waging an ultimately losing battle to halt marriage equality. The federal courts have decreed that Alabama gays can marry forthwith – a federal judge appointed by George W. Bush said so last Friday; the U.S. Supreme Court, by a vote of 7-2, buttressed the federal judge on Monday – yet somehow state Chief Justice Roy Moore thinks that “state sovereignty” trumps the feds.

    Alabama thought that way a century and a half ago when it invoked state’s rights as its rationale for keeping black people in chains. Alabama, and its fellow Confederates, fought a civil war and lost. Alabama thought that way again, half a century ago, when it tried to defy federal desegregation edicts. Again, Alabama lost.

    • WHYY thanks our sponsors — become a WHYY sponsor

    Yet here is Roy Moore, repeating the old pattern, poised to become history’s roadkill: “A lot of states in this union have caved to such unlawful authority, and this is not one. This is Alabama.”

    It most certainly is.

    Moore sent a letter to all the local probate judges – in Alabama, probate judges issue the marriage licenses – instructing them to defy the federal courts. At last check, judges in 44 of the 67 counties have heeded Moore’s advice. But Callie Granade, the Bush-appointed federal judge who ruled for marriage equality, has scheduled a Thursday hearing; in all likelihood, she’ll slap down the bitter-enders.

    Moore went to law school, but apparently he never saw Article VI of the U.S. Constitution, which says that the Constitution “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Federal judges are often called upon to determine whether state laws are in sync with the Constitution. When contested state laws are found wanting – as was the case with Alabama’s gay marriage ban – they’re tossed out. And the “states shall be bound thereby.”

    But let’s face it, Moore’s defiance isn’t grounded in a scholary reading of the legal documents; this is just a guy who’s skeeved out by the idea of gay people codifying their love. He once said that gay marriage is proof that “Satan is out to destroy everything that God has created.” He once said that gay marriage “will be the ultimate destruction of our country” – which I suppose means that we’re well on the road to doom, since gay marriage is now legal in 37 states. Including Alabama.

    In other words, his legal mind has been clouded by his bigotry. Which explains why he thinks that “the will of the people” trumps the federal courts. Yeah, it’s true that 80 percent of Alabama voters approved a gay marriage ban in a ballot measure. But rest assured that if segregation had been on the Alabama ballot in the 1950s, it too would’ve won with a landslide majority. Just because “the will of the people” speaks, it doesn’t necessarily mean that the sentiment is constitutional.

    Moore has also floated this doozy: “There’s nothing in the (U.S.) Constitution that allows the United States Supreme Court or federal district courts to redefine marriage.” Indeed there isn’t. In fact, there’s nothing in the Constitution that allows federal judges to redefine marriage so that blacks and whites can wed. But the Supreme Court ruled for intermarriage 48 years ago – because there is something in the Constitution (a principle encoded in the 14th Amendment) that mandates “the equal protection of the laws.”

    By the way, that ’67 intermarriage ruling didn’t sit well with Alabama, either. As late as 1999, rural probate judges were still refusing to issue licenses to couples engaged in race-mixing. But eventually, Alabama dragged itself into the modern world. It will happen again with gay marriage; once all avenues of resistance are exhausted, there is a duty to obey the binding rule of law.


    Follow me on Twitter, @dickpolman1, and on Facebook.


    WHYY is your source for fact-based, in-depth journalism and information. As a nonprofit organization, we rely on financial support from readers like you. Please give today.

    Want a digest of WHYY’s programs, events & stories? Sign up for our weekly newsletter.

    Together we can reach 100% of WHYY’s fiscal year goal