Since the 2013 decision from the Supreme
Court to strike down Section 3 of the Defense of Marriage Act [1],
37 states and the District of Columbia have removed their ban on same-sex
marriage. [2] The national legalization of same-sex marriage seems
to be rapidly approaching. However, with
each new state comes new problems and barriers to enforcement. Frequently, in more traditionally
conservative states in the south and mid-west, objection to the lifting of
these bans has become commonplace. As is
the case with the most recent state to overturn its ban, on January 23, Alabama
has faced significant obstacles in trying to force local probate judges to issue
marriage licenses for same-sex couples.
The ban was lifted in Alabama when a
same-sex couple sued the Attorney General to recognize marriages. [3] After the ban was lifted, there was a
temporary hold on marriages until Feburary 9th, when US District
Judge Granade ruled that all state officials must adhere to the revocation of
the ban and the new allowance for same-sex marriage in their jurisdiction. In addition, on February 9th, the US
Supreme Court and the 11th Circuit Court of Appeals upheld the continuation
of same-sex marriages and would not permit the hold to extend beyond February 9th.
The problem that has created significant
conflict and controversy in the state is the result of a letter to state judges
from Judge Moore, the chief justice of the Alabama Supreme Court. Judge Moore claims that the federal court
decision was an invasion of the sovereignty of states’ rights. He therefore asserted that the state has the
right to interpret the Constitution, and it is their judiciary obligation to
correct “any condition or situation adversely affecting the administration of
justice within this state”. This position
poses a significant problem for two reasons.
First, Justice Moore does not have jurisdiction in this case as the
Supreme Court of Alabama was not overseeing any same-sex marriage cases at the
time. Secondly, the decision had already
made by the Eleventh Circuit Court and the US Supreme Court upheld its
enforcement. Justice Moore’s proclamation
that the state judges may ignore that decision, far oversteps his legal authority.
[4]
However, Alabama faces a barrier in that
marriage licenses are issued differently than elsewhere in the United
States. In most states, clerks who fall
under the jurisdiction of the attorney general or another state official can
issue marriages licenses. Differently,
in Alabama, probate judges issue the licenses and therefore would not have to
recognize this decision, as the attorney general of Alabama was the defendant
in the case and he does not supervise probate judges. Given this obstacle, a probate judge would
likely need to see a case involving same-sex marriage to cause probate judges
statewide to enforce this decision. [5]
The issue of states’ versus federal
rights has been an ongoing argument since the founding of the United States and
has posed problems frequently throughout American history. In the Constitution, the 10th
Amendment grants powers not explicitly given to the federal government, or
prohibited by the states, to the state. [6]
However, a major issue regarding supremacy was directly addressed in McCulloch v. Maryland, in 1819; with
this decision, the Supremacy Clause, Article 6 Section 2 of the Constitution,
was addressed to give the federal government authority over the states when a
conflict arose over a law. [7] Since
McCulloch v. Maryland case, more
historical conflicts have arisen such as the issue of a states’ right of
secession during the Civil War and have continued to current day such as the
case in Alabama. Although the current
situation is more of a civil rights infraction, Justice Moore seems to have
defended his decision as a state sovereignty concern.
The overriding problem now is whether
the state will enforce the federal order or disregard it and act accordance to
the directive of Justice Moore, recognized to be a conservative judge who has
been removed in the past. Since Justice Moore’s
message, some judges in Alabama have begun issuing marriage licenses to
same-sex couples, while other have refused to do so. As of February 9th, marriage
licenses began to be issued and will likely continue in some districts as
Alabama’s gay marriage ban was deemed unconstitutional. [8]
The
Supreme Court has recently decided to take up the two issues of state bans on
same-sex marriage and a state’s ability to recognize a marriage license issued
in another state. The Court has brought
up four cases to see in April with a ruling likely in June. The ruling will be based off a decision made
by the Sixth Circuit Court of Appeals that chose to uphold same-sex marriage
bans in four states. Seeing as the
Supreme Courts plans to address these issues, the legal conflicts in Alabama
may be resolved soon with the SCOTUS ruling.
[9]
1.
US v.
Windsor 12 U.S.. 307.
2.
"Map:
Same-sex Marriage in the United States." CNN. Cable News Network, n.d. Web. 11 Feb. 2015.
3.
Lopez,
German. "Alabama's Constitutional Crisis over Same-sex Marriage,
Explained." Vox. Vox Media, 11
Feb. 2015. Web. 11 Feb. 2015.
4.
Ibid.
5.
Ibid.
6.
Amendment
10. U.S. Constitution
7.
McCulloch
v. Maryland. 17 U.S. 316
8.
Lopez,
German. "Alabama's Constitutional Crisis over Same-sex Marriage,
Explained." Vox. Vox Media, 11
Feb. 2015. Web. 11 Feb. 2015.
9.
Denniston,
Lyle. "Court Will Rule on Same-sex Marriage (UPDATED)." SCOTUSblog
RSS. SCOTUSblog, 16 Jan. 2015. Web. 16 Feb. 2015.
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