Sweet Home Alabama

Trust Alabama to go full-on crazy.

A quick recap.

Since Windsor was handed down just over a year and a half ago, judge after judge has struck down same-sex marriage bans throughout the country (the exceptions being Louisiana, Puerto Rico, and the Sixth Circuit)*.  Some states like Pennsylvania and Oregon quietly accepted the decision and went about their business.  Some officials in other states ranted and fumed and continued appealing to the Supreme Court, but backed down after that failed, even in the most retrograde states like Oklahoma and Utah.

Following the Supreme Court’s clear signal that it had no intention of stopping the lowers courts from striking down marriage bans, even more bans fell.  Arizona, Idaho, Alaska, Montana, North Carolina, South Carolina, Wyoming.  All these states were in circuits that had ruled in favor of same-sex couples, all their bans fell, and the Supreme Court refused to hear any of them.

The Sixth Circuit, in contrast to all other Circuits that heard the issue, upheld the bans in four states and that decision was appealed to the Supreme Court.  While those cases were pending a certiorari decision, a judge in Florida struck down that state’s marriage ban and, although there was a stay, it was finite.  The 11th Circuit would not continue the stay, and then, another shock, neither would the Supreme Court–the first time it allowed a stay to lapse before the appropriate Circuit Court of Appeals heard the case.  That too gave further ammunition of those observers who believed the Justices were preparing to rule in favor of nation-wide marriage equality.

Which brings us to Alabama.  A few weeks ago a federal judge** struck down Alabama’s constitutional ban on same-sex marriage.  The stay was to expire on February 9th, just enough time to allow the state to appeal to the 11th Circuit and, if need be, the Supreme Court.  The 11th Circuit refused to extend the stay, and this morning, as the stay was set to lapse, the Supreme Court weighed in.  Or rather it didn’t weigh in.  The Justices denied the stay request.  This is all the more significant because the four cases out of the Sixth Circuit have been granted cert, and in such cases issuing a stay to other like cases is almost pro forma.  By not acting, the Supreme Court’s message is loud and clear: marriage bans are doomed.  Certainly Justice Thomas (and Justice Scalia) believes that.  In fact what he wrote was that not extending the stay “may well be seen as a signal of the court’s intended resolution of that question.”

Whereas previous negative reactions from state officials to federal courts striking down marriage bans in their states have largely been sound and fury signifying nothing, Alabama has gone completely off the rails.  On February 8th, knowing that the stay in the Alabama case would expire the next morning, the lunatic, fanatical-Christianist, already-removed-from-office-once, state Supreme Court Chief Justice Roy Moore ordered all the probate judges in the state to not issue marriage licenses to same-sex couples.  Officials in 52 of Alabama’s 67 counties have thus far complied with Moore, even though in denying the stay request, the Supreme Court clearly undercut him.  So Alabama is in complete chaos right now.

If this sounds familiar to you, well… obviously.

No doubt the good people of Birmingham, Huntsville, and Montgomery (where same-sex marriages are taking place without problem) are embarrassed and thinking to themselves, “Not again.”  And they can’t even take comfort in Mississippi being an even bigger embarrassment because the decision striking down Mississippi’s ban is currently stayed pending appellate review.  (But if the Fifth Circuit rules in favor of same-sex couples before the Supreme Court does, then we’ll see if Mississippi can out-Alabama Alabama.)

So thank you, Alabama for the needless drama which you will ultimately lose.  Way to shore up that reputation!

Footnotes: 

* The Louisiana decision looks likely to be struck down by the Fifth Circuit, the Puerto Rico decision is pending First Circuit review, and the Sixth Circuit decision will be heard by the Supreme Court this spring.

** Who, fittingly enough, is the granddaughter of Richard Rives of the “Fifth Circuit Four,” four southern federal judges who the vanguard in the legal battle for equality during the Civil Rights Era.

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