The stakes just got raised in the legal tussle between state probate judges in Alabama who refuse to issue marriage licenses to same-sex couples and a federal district judge Callie Granade who had ruled that the state’s ban on same-sex marriages was unconstitutional. Granade has now directly ordered the probate judge Don Davis in the town of Mobile to issue licenses to same-sex couples. (You can read her ruling here.)
The situation in Alabama is a confused mess. As of Thursday, judges in 23 counties were issuing licenses to everyone, in 18 they were issuing licenses to opposite-sex couples only, and 26 were not issuing any licenses to anyone. Granade’s ruling only applies to this particular judge because the four couples who sued in her court and won all applied for licenses in this jurisdiction. Davis claims that he is bound by the order of the state chief justice Roy Moore, his direct superior, to not issue licenses. Granade did not say what she would do if Davis continued to defy the ban but a contempt citation would seem likely.
Meanwhile Moore suggested that he might be willing to dissent even in the face of a ruling by the US Supreme Court in favor of same-sex marriage, which would lead to a truly epic confrontation. Paragraph 2 of Article VI of the US Constitution says that “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” This clause, known as the Supremacy Clause, is pretty unambiguous so it is not clear where Moore gets to think that he can dissent.
The Daily Show discussed the bizarre situation that is developing in Alabama.
(This clip aired on February 11, 2015. To get suggestions on how to view clips of The Daily Show and The Nightly Show outside the US, please see this earlier post. If the videos autoplay, please see here for a diagnosis and possible solutions.)
Got to love the theocrats. They love a constitution that does not exist.
I can understand many people’s confusion. True, the Federal government has many powers, carefully defined in the Constitution, that over-ride state authority. One of them is to ensure that laws do not become a patchwork of differences. For this reason, Loving vs. VA was decided against the state. People who otherwise qualified to be married, but were forbidden in VA (mixed races), were extended those rights by order of the Supreme Court, and enforced by order of the Federal government.
This isn’t a similar case. This gets to the core of what marriage is -- NOT the joining of lovers, NOT the outward symbol of their eternal love, NOT a way to get the spouse on the insurance benefits.
It was designed, and has as its sole reason, the protection of minor children’s rights to support (and, by extension, women’s support rights, as they were historically not able to earn a living).
That’s IT. Because the natural course of events in a marriage does generally lead the participants to become parents, whether planned or not, the institution arose, and has considerable law defining it, and affecting it.
But…but…gay people can become parents, too!
Well, yes, but not without the intervention of another person of the opposite sex. In other words, it’s not an accident, but a deliberate action. As such (in contrast to the situation of -- Ooops! I’m pregnant!), the consequences can be anticipated and planned for, and there are legal remedies -- power of attorney, wills, etc. -- sufficient to handle those situations.
So, why does this judge think that he has the right to step into this controversy?
Amendment 10 of the Constitution:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Setting rules about who can marry (closeness of relationship, age, competency, health issues such as STDs, etc.) is SOLELY the responsibility of the states, and cannot be thwarted by overzealous crusaders for gay rights.
Loving v. VA was a Constitutional issue -- Amendment 14, which gave ALL citizenship rights to Black people.
There never has been a Constitutional change that mandated sexual equality, gender awareness, or gay rights. The Equal Rights Amendment WOULD have addressed sexual equality, but was never adopted.
This is long-winded, but I think it’s important to state that this is more than “anti-gay” activity (although, there may well be some of that, too). This is about whether we are a people of LAWS, rather than WHIMS. Core principles of Constitutionality cannot be negated just because someone’s feelings get hurt. If we don’t stand firm, another President/judges/bureaucrats could decide to negate YOUR rights, protections, or legislated desires.