Same-Sex Marriage: Flouting the Supreme Court

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Supporters and opponents of same-sex marriage hold signs on the steps of the Jefferson County Courthouse in Birmingham, Alabama, on February 9, 2015. Same-sex couples began marrying in Alabama on Monday despite an attempt by the conservative chief justice of the state’s Supreme Court to block judges from issuing marriage licenses to gay men and women, in open defiance of a January federal court ruling. Marvin Gentry/Reuters

Even as advocates for marriage equality predict victory at the U.S. Supreme Court this spring, Alabama Chief Justice Roy Moore is instructing state judges to defy a federal court's order to grant marriage licenses to same-sex couples, sparking what one law professor calls a "constitutional crisis."

Moore, who gained notoriety after being kicked off the bench in 2003 for defying a federal court order to remove a 2.6-ton Ten Commandments monument from his courthouse, has said for weeks that he would continue to recognize the state's ban on same-sex marriage. Local media reported that, even before the order, at least five Alabama judges planned to deny marriage licenses to same-sex couples when the federal court order went into effect this week.

These officials are essentially arguing that the Constitution does not apply in their state. In addition, former Arkansas governor Mike Huckabee recently advised state officials to ignore any ruling in favor of same-sex couples.

The calls for judicial defiance come in an era when conservative state lawmakers are trying to thwart the implementation of the Affordable Care Act and President Barack Obama's executive actions. These conservatives are essentially arguing for "nullification," a ridiculous theory that says states can ignore federal law even though the Constitution says otherwise. Ian Millhiser of ThinkProgress described nullification as "nothing less than a plan to remove the word United from the United States of America."

If the U.S. Supreme Court does in fact rule that same-sex couples have a right to marry, history suggests that fringe legislators and judges will continue to deny the federal constitutional rights of committed couples.

Some Alabama judges initially refused to comply with the U.S. Supreme Court's 1967 ruling that struck down bans on interracial marriages, denying a license to a black woman and a white soldier stationed in Alabama. The U.S. attorney general filed a lawsuit on the couple's behalf, and a federal judge again struck down the Alabama law, in 1970.

And yet the state did not remove the clause prohibiting interracial marriage from its constitution until 2000, only after interracial couples reported to a legislator that they were still encountering judges who denied them marriage licenses. In Louisiana, one judge resigned in 2009 after denying a marriage certificate to an interracial couple, claiming their child would suffer social isolation.

Defiance of federal court rulings have extended far beyond the right to marry. For instance, the Florida Supreme Court in 1957 defied a U.S. Supreme Court order to enroll a black student in a state law school. And Stephen Bright of the Southern Center for Human Rights notes that Georgia judges resisted providing public defenders to all criminal defendants for decades after the U.S. Supreme Court's 1963 ruling that the right to counsel applied to everyone charged with a crime.

Even when state judges comply with federal marriage-equality rulings, some may face obstacles created by their own legislatures. In Texas, Oklahoma and South Carolina, state lawmakers are considering bills that would punish judges who recognize federal courts' marriage rulings. The Oklahoma statute would dock the pay of judges who comply with federal rulings for marriage equality or even remove them from office. This type of obstructionism is similar to recent bills that seek to punish state officials' compliance with the Affordable Care Act, federal gun laws and other valid statutes.

In North Carolina, legislators are floating a bill that would allow magistrates and clerks to continue discriminating against gay couples in the name of "religious freedom," effectively giving judges a license to discriminate against couples that have been denied their right to marry for too long. A 2014 Center for American Progress report noted that anti-LGBT businesses are turning to religious freedom statutes to avoid civil rights statutes "and deny services to those who they believe are at odds with their religion."

One Alabama probate judge cited his state constitutional right to religious freedom in refusing marriage licenses to everyone, rather than comply with the federal court order. Inspired by the U.S. Supreme Court's recent Hobby Lobby decision, conservatives are turning to the familiar argument that their religious beliefs trump the constitutional rights of same-sex couples.

The Constitution states that federal law is "the supreme law of the land," trumping state constitutions when they conflict with the federal constitution. Federal courts will not allow state officials to defy their rulings—even if, as with desegregation after Brown v. Board of Education, it takes decades of judicial supervision.

Marriage equality advocates suggested they would take legal action against the judges who follow Moore's instructions and violate the Constitution. The unfortunately reality, though, is that although anti-LGBT officials can't stop progress, they certainly will attempt to slow it, disrupting the lives and rights of committed same-sex couples in the meantime.

Billy Corriher is the director of research for legal progress at the Center for American Progress.