Well, It's Sorta Like The 1960s

(Bumped.)

Setting aside for a minute whether the courts should be ruling on marriage bans and, if so, whether such bans are unconstitutional, this Byron York column has five premises and a kicker faulting a whole bunch of people down in Alabama. But three of the premises are flat wrong, and so is the thrust of the piece.

In some press reports, it's the 1960s all over again in Alabama. Fifty years after George Wallace stood in the way of civil rights, a new Wallace, in the person of State Supreme Court Chief Justice Roy Moore, is standing in the way of gay rights with a move to defy a federal judge's order legalizing gay marriage. But the current, very temporary, impasse over marriage in Alabama is not the 1960s at all, but rather a screw-up of epic proportions — the combined effect of 1) a badly-designed lawsuit; 2) an overreaching federal judge; 3) an overreaching state Supreme Court chief justice; 4) a pair of misguided and misdirected court rulings; and 5) a state full of confused county officials. The kicker to the story is that the problem will be mostly, if not fully, resolved in a day or two, and besides, the U.S. Supreme Court will settle things not only for Alabama but the rest of the nation in June.

Go ahead and read the whole thing. York's off the rails, though.

First, York lampoons the plaintiff gay couples for "a badly-designed lawsuit." According to York, they should have sued the probate judge and not AG Strange. In fact, they did sue the probate judge. You can see their complaint here (PDF). The defendants included Don Davis, the Judge of Probate for Mobile County. (Davis later had the complaint dismissed as to himself on judicial immunity and lack of remedy grounds, since—at that time—the underlying adoption case had a different legal posture.) AG Strange continued to defend the state marriage ban.

Second, York blasts federal district court judge Granade for issuing the order at all, since the Supreme Court could possibly resolve the issue by the end of June. I say "possibly resolve," because the Supreme Court may, on the other hand, not resolve things this term. Abatement is not the proper remedy in such a situation. Notably, the Fifth Circuit is likely to soon rule on the marriage bans before it too. And, of course, the whole Alabama situation resulted after the Supreme Court declined to stay Granade's ruling pending a decision at the Supreme Court.

Third, York also slams Granade for ordering AG Strange to issue marriage licenses to gay couples. In fact, the judge issued no such order. I'm not sure where York got that idea. The order, which you can see here at Dkt. No. 54 (PDF) enjoined the AG from enforcing the marriage ban because it was unconstitutional. The order did not require the AG to issue licenses, which I agree with York would have been a mighty odd order.

Fourth, York claims that Chief Justice Moore only got involved to point out this error by Granade. As you can see, obviously if Moore thought that Granade had ordered AG Strange to issue marriage licenses, he made the same mistake as York. For what it's worth, I don't believe that Moore got involved for that reason. Moore jumped in with no case in front of him to issue an advisory opinion on what he believed the law required. It was pure overreaching motivated by his interest in the issue.

Fifth, York is correct that there are confused probate judges. But he leaves out the confused gay couples seeking to marry! Both in good faith see conflicting court orders—that is, Granade's decision striking the marriage ban and Moore's instruction that Gov. Bentley should impeach any probate judges that offer marriage licenses to gay couples. (BTW, Gov. Bentley responded that he would not be impeaching any probate judges and left it to the judicial process to sort out.)

In short, York attacks a bunch of folks in Alabama for things they didn't do for reasons that aren't very clear. I get that York wants to argue that the current events are not analogous to the 1960s. But he proceeds from a series of false premises to slam the judge and the plaintiffs for things they did not do. Then he undercuts the entire thrust of the piece by acknowledging that, yes, Granade can, and very probably will, soon resolve the impasse by ordering the objecting probate judge to comply, notwithstanding the order of Moore. The federal courts overruling protesting state officials? Well, that certainly does suggest some Alabama events from back in the 1960s.

posted by Gabriel Malor at 09:16 PM

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