Today, after the U.S. Supreme Court declined to issue a stay on the order of Judge Callie V.S. Granade of the Southern Alabama U.S. District Court invalidating Alabama's constitutional prohibition on recognition of same-sex marriages, probate judges in the state of Alabama were to be compelled, under the authority of the U.S. Constitution, to issue marriage licenses to same-sex couples otherwise in compliance with marriage laws of Alabama. Presumably, other state agencies and offices are similarly compelled to recognize, for purposes relating to the extension of legal marital benefits, same-sex marriages performed within the state and performed in other states in which same-sex marriage has already been constitutional enforced as a right to be exercised by two freely contracting adult individuals. However, judges in 44 of 67 Alabama counties have refused to issue marriage licenses to same-sex couples seeking legal validation of their relationships through a civil marriage contract on the grounds that there exists a constitution conflict. On Sunday, Chief Justice Roy Moore of the Alabama Supreme Court, the highest jurist in the state judiciary and, thus, the highest authority on the Alabama constitution, ordered probate court judges not to issue marriage licenses to same-sex couples on the grounds that Judge Granade's decision was not binding on Alabama's judicial system, presumably because the regulation of marriage is not a federal question on which the U.S. Constitution holds ultimate supremacy.
And so we have arrived now at the judicial showdown on marriage equality, when the dogged determination of same-sex marriage advocates to enforce marriage equality as the law in every corner of the U.S. runs headlong into the vindictive obstinacy of hardcore Southern conservatives defending their bastions of "Christian" morality against the degenerate Twenty-first century. The U.S. Supreme Court will apparently issue a definitive ruling this year on the question of same-sex marriage as a matter of Constitutional right. At least until such time, however, Chief Justice Moore appears content to flout his ambivalence toward the wave extending same-sex marriage privileges across two-thirds of the states by federal judicial fiat. In this manner, Chief Justice Moore's actions have, in a manner similar to that of Alabama Governor George Wallace's efforts to enforce racial segregation in the 1960s, reiterated the broader issues of federalism and the limitations of federal judicial authority in regulating actions traditional consigned to state government.
I have made the point previously on this blog that marriage, as a civil contract, is a creature of state government and that the federal government, under the stated limitations of the U.S. Constitution, is not vested with the authority to alter or otherwise augment the specified privileges, responsibilities, limitations, and liberties of individuals to enter into marriage contracts under statutory or Common law institutions enforced by state government. No passage of the U.S. Constitution or of any of its amendments references in any way, shape, or form the institution of civil marriage. In this sense, the federal judiciary lacks any Constitutional basis for claiming that the regulation of civil marriage is a controversy implicating federal law for which Article 3 courts enjoy jurisdiction. I would hold, therefore, with Chief Justice Moore, that Judge Granade lacked the Constitutional authority to invalidate Alabama's prohibition on same-sex marriage.
Concluding in this manner compels me to acknowledge the broader body of judicial precedents that guided Judge Granade's decision, in view of the fact that she did not invent the Constitutional basis for her ruling out of thin air! First and foremost, Judge Granade issued a ruling that fully enforced the conclusions of Justice Kennedy's opinion in U.S v. Windsor (570 U.S. ___(2013)) that the extension of privileges, immunities, and obligations attendant to civil marriage constitutes a subject governed by the equal protection guarantees of the U.S. Constitution. While Windsor applied only to actions by Congress subject to the guarantee of due process under the Fifth Amendment, Justice Kennedy's language clearly anticipates the idea that any truncation of marriage privileges targeting a particular class of citizens otherwise enabled under the law to enter into a marriage contract would constitute a violation of equal protection, prohibited under the Fourteenth Amendment against state action. Going back further, an identical basis exists for invalidation of state marriage laws as a violation of equal protection in the precedent of Loving v. Virginia (388 U.S. 1(1967)) in which the Warren Court held state laws against miscegenation/interracial marriage to be invalid as a violation of the equal protection clause of the Fourteenth Amendment.
While I must acknowledge that these precedents guarantee that any prohibition of same-sex marriage would violate the U.S. Constitution, I would further question the basis on which these decisions were initially issued. I have previously argued on this blog that Windsor was correctly decided but by the wrong Constitutional basis - Justice Kennedy correctly invalidated provisions of the federal Defense of Marriage Act prohibiting federal agencies from recognizing same-sex marriages, but the decision should have been issued as an intrusion of state powers protected under the Tenth Amendment rather than on the basis of the equal protection of individuals. I would, likewise, hold that Loving was wrongly decided. The problem with Loving is that basis on which Chief Justice Warren issued his decision emphatically forces federal jurists to enter into an area of civil law traditionally reserved to state government in order to evaluate whether the particular distribution of privileges and obligations under a state's marriage laws conforms to a given notion of equality. In challenges against interracial marriage bans prior to Loving, state anti-miscegenation laws were upheld because the distributions of privileges, obligations, and limitations on the ability to enter into marriage fell equally across all individuals regardless of race - white individuals were equally subject to a ban on interracial marriage as black individuals, the enforcement of the ban was performed on a race-neutral basis. In transcending this definition of equal protection under the law to argue that a ban on interracial marriage violates equal protection, the Warren Court explicitly applies a new conception that state marriage laws must be strictly race-neutral in the issuance of marriage licenses in order to satisfy the Fourteenth Amendment equal protection guarantee. Such a requirement does not, however, derive logically from any other part of the U.S. Constitution. The same criticism holds with regard to same-sex marriage.
Closing, the point that I am attempting to make here is not that prohibitions on interracial or same-sex marriages are good things. As a matter of principle, I support marriage equality for all consenting adults complying with the particular marriage laws of a jurisdiction. The issue is, however, whether the U.S. Constitution specifically prohibits states from constructing marriage laws that prohibit same-sex, interracial, or other manifestations of marital relations, and there is simply nothing written in the Constitution that would lead me to this conclusion. In the absence of such a provision, I am inclined to say, with Alabama Chief Justice Moore, that marriage laws are a state matter. Further, based on Alabama's reaction and the possibility of additional, second-hand effects of federal intrusion into matters otherwise reserved to state governments, I continue to believe that the imposition of same-sex marriage on states by federal judicial fiat was a bad strategy for progressive supporters of marriage equality that will only end up making a wide range of social issues in the U.S. even more politically toxic!
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