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Constitution Check: Who will blink first on same-sex marriage in Alabama?

March 17, 2015 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the unusual situation in Alabama, where a federal judge is pondering her next steps in a conflict with that state’s Supreme Court over same-sex marriage licenses.


alabama_Supreme_Court_Building640THE STATEMENT AT ISSUE:


“Few, if any, issues of law currently are as uncertain in this state and country as that of the marriage and associated rights of same-sex couples. Conflicting rulings from this court and the Alabama Supreme Court, as well as the imminent ruling by the U.S. Supreme Court on the rights of same-sex couples, have created much confusion about what the applicable law requires.”


– Excerpt from a filing in federal court in Alabama March 11 by a state probate judge, Don Davis of Mobile, seeking to resolve the legal dilemma facing him: he is under directly conflicting orders by a federal judge and the state Supreme Court over the issuance of marriage licenses and adoption decrees to same-sex couples.




The Constitution, everyone agrees, is the “the supreme law of the land.” In fact, the document itself says exactly that in the Supremacy Clause of Article VI (a part of the original charter that has never been changed).   Both federal and state judges are bound by it. But, between them, who has the authority to interpret what the Constitution means? And that is precisely the question that has turned the state of Alabama into a modern constitutional laboratory.


A federal trial judge in Mobile, Callie V.S. Granade, has ruled that Alabama’s ban on same-sex marriage violates the federal Constitution. The Alabama Supreme Court, noting that it has independent authority to interpret the Constitution, disagreed, and has ordered all 68 probate judges in the state (they have the authority to issue marriage licenses) to cease granting any licenses to gay or lesbian couples.


Although a number of those couples have been married in Alabama, based upon Judge Granade’s ruling, not one new license has been issued since the state’s highest court put a stop to that earlier this month. Caught in the middle is one judge in particular – Don Davis of Mobile – who has recruited a team of lawyers to try to get him out from under the conflicting rulings; their main tactic is to try to persuade Judge Granade to let him exit from any further proceedings in her court, until the Supreme Court in Washington has what may be the last word on the constitutional question.


Depending upon how Judge Granade reacts to a new lawsuit seeking to gain same-sex marriage rights all across Alabama, other probate judges could soon be in the same position as Davis.


On March 16, Judge Granade met with lawyers on both sides of the controversy at the courthouse in Mobile for what is called a “status conference.” That is the kind of gathering that judges set up to sort out procedural complexities and make plans for what steps to take next.


Judge Granade faced a quite unusual situation: it is not common, these days, for federal and state courts within one state to get into a struggle for power or primacy on a current legal issue. There is something called “comity,” which generally means showing mutual respect between two levels of government. That is a basic necessity, given the dual system of courts that exists in the U.S., with each having the authority to interpret the national Constitution.


Without necessarily stepping aside after a court at one level rules on a constitutional question, a court at the other level usually will not lunge right into a disagreement. There is some room for flexibility, in the management of court cases, and mutually respectful courts can use that to maintain harmony.


In the Alabama situation, though, something has occurred that puts comity to a severe test. The Alabama Supreme Court, without having a case before it directly testing the constitutionality of Alabama’s same-sex marriage ban, used a procedural claim by opponents of such marriage to reach out to decide that the state ban was, indeed, valid under the federal Constitution. Only one of that court’s members dissented, arguing that it had no authority to do what it did.


Of course, there is one place where constitutional disagreements, when they do occur, can be sorted out in a final way: the U.S. Supreme Court. For reasons that are not yet clear, the Supreme Court has not yet been called upon to get involved in the Alabama controversy. Judge Davis, or any other state judge covered by the Alabama court’s order upholding the ban, could have appealed to the Supreme Court. (The Supreme Court in Washington generally has to take as a given what a state court says about the meaning of its own state constitution, but the Alabama Supreme Court based its ruling directly on the national document, and that is subject to direct review by the Justices.)


At this point, however, the Supreme Court is already moving toward what is probably going to be a final decision settling the marriage question. If the Alabama controversy were to be taken to the Justices soon, they might simply take no action on it until they decide the already pending cases from four other states.   An appeal from Alabama at this point would probably be a request for a delay of the state Supreme Court’s ruling, rather than a plea for a full-scale review of that decision, but that would still confront the Justices with the challenge of exercising its ultimate power over a state court – a not very attractive proposition, especially for a court that has a reputation of being strongly supportive of the sovereignty of state governments.


In the meantime, lawyers on both sides of the ongoing proceedings in Judge Granade’s court continue to battle for advantage: the couples’ lawyers, having once gained marital rights for their clients, are not willing to let those be put on hold, and lawyers on the other side, having once gained a postponement of such marriages across the state, are unwilling to let licensing resume, and Judge Davis’s lawyers – in the middle – are left with unattractive alternatives.


Whatever happens in coming days, a controversy that has already stirred deep emotions on both sides may create even harder feelings, and generate a question for ordinary citizens on how the dispute has come to this.


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