The Supreme Court has stopped the efforts of Justice Roy Moore, the chief judge of the Alabama Supreme Court, to stand in the wedding aisle and block the marriages of same-sex couples in his state. There was no case on marriage before Moore; he had intervened, loudly, when U.S. District Judge Callie V. S. Granade, whose courtroom is in Mobile, ruled that the state’s anti-marriage laws were unconstitutional. Her ruling was stayed, but only until Monday morning. That, apparently, made Moore angry. First, he said that probate judges didn’t have to abide by the federal decision if they didn’t want to—a remarkable stance in itself. Then, when it seemed that judges might not turn away loving couples, he issued an order declaring that they were forbidden to respect the decision. The Alabama Attorney General asked for an emergency stay from the Supreme Court, saying that the state would be irreparably harmed if couples went ahead and married. The Court turned them down. By noon on Monday, news reports were full of pictures of people holding bouquets, bearing rings, and kissing their new spouses. [Update, 6:30 P.M., Monday: By the end of the business day, probate judges in more than a dozen of Alabama's sixty-seven counties had issued same-sex marriage licenses; many others, though, denied them, only took applications, or closed their doors entirely.]
The Supreme Court’s decision was important on a number of counts. First, for the families of Alabama that have been denied the protection and respect that comes with marriage. Second, it is a strong sign that the Court, which is set to hear arguments this spring on whether there is a fifty-state constitutional right to same-sex marriage, knows where it is headed, and it is in the direction of equality. (The order was accompanied by a dissent signed only by Justices Antonin Scalia and Clarence Thomas, whose main argument was that the Court should allow states to wait for its final ruling on “this important constitutional question.”) Third, it made it clear that there is a definite federal interest in the marriage issue.
A few weeks before the anniversary of the Selma march to Alabama’s state capital, Moore’s position—saying that state judges were not bound to respect decisions based on the U.S. Constitution—had a certain unpleasant resonance. (As Chris Geidner, of BuzzFeed, noted, Moore called the federal court ruling an “illegal order.”) The Times reported that Moore, in an interview, “resisted comparisons” to George Wallace, the governor who, in 1963, stood in the doorway to keep black students out of the University of Alabama, but Moore’s resistance sounded more like indifference. He dismissed Judge Granade’s ruling as “her views.” (According to a profile on AL.com, Granade earned the nickname the Iron Butterfly for her work on anti-corruption cases. “I didn’t start this,” the paper quoted Moore saying. “This was a federal court case pushed on our state.”
Where does Moore think federal cases come from? This one did not descend from bureaucrats in Washington. It was brought because a nine-year-old boy who was born in Alabama has so far been denied the family rights he deserves. The plaintiffs are Kimberly McKeand, who sued in her own right and as the biological mother of the boy, whose name is Khaya, and Cari Searcy. McKeand and Searcy, who live in Mobile, have been together for fourteen years and were legally married in California, but Alabama law regards McKeand as a single parent and Searcy as a legal stranger. She is not allowed to adopt her own child. (The family has told their story in a (http://www.iamaparent.com/#!about/ct3q).) This is not an abstract issue for the two mothers: Khaya was born with a hole in his heart and had to have heart surgery as an infant. When he was in the hospital, Searcy was told that she could not help care for him, or even feed him.
That is not the long arm of Washington clamping down on Alabama but a set of very small fingers reaching up. According to statistics collected by the Williams Institute, at the University of California, Los Angeles, just over twenty per cent of same-sex couples in Alabama are raising children together; in the Mobile metropolitan area, the number is one in four. Judge Granade recognized this in her ruling, writing that Alabama state law “harms the children of same-sex couples.” She also cited Justice Anthony Kennedy’s majority opinion in United States v. Windsor, overturning the Defense of Marriage Act, which, Kennedy wrote, “humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
The Defense of Marriage Act had denied federal recognition to even state-sanctioned same-sex marriages, and for that reason the decision overturning it is sometimes misread, perhaps willfully, as one purely grounded in federalism—that is, the idea that marriage is a state business. Congress’s unusual interest in marriage laws might have been a sign to the justices that some discriminatory intent was at work in the passage of DOMA, but the reasoning of Windsor relied on the Equal Protection and Due Process clauses of the Fourteenth Amendment. That is something a couple of dozen federal judges have recognized since Windsor, and the reason that Alabama is now the thirty-seventh state in which same-sex couples can marry. The one outlier is the Sixth Circuit, thanks to a decision by Judge Jeffrey Sutton that relied on Sutton’s own preference for legislative outcomes and a 1971 Supreme Court order, in the case of Baker v. Nelson, dismissing an appeal of an early-marriage case “for want of a substantial federal question.” As even Scalia and Thomas implicitly acknowledged on Monday, that question exists.
As I’ve written before, until the Supreme Court rules, the South will be the final battleground in the marriage fight, in part because there are not so many other arenas left, and in part because there are still judges like Roy Moore, who act as if the region needs protection from the love of its own residents. In contrast to Moore, in the neighboring state of Mississippi, Judge Carlton Reeves, in ruling against a similar marriage ban, wrote that the history of the civil-rights movement showed why courts had an important role to play. (One of the cases he cited was Loving v. Virginia, which struck down laws prohibiting interracial marriage.) That history includes George Wallace but also the “Fifth Circuit Four,” Southern federal judges who ruled in favor of civil rights in a series of key cases, despite enormous pressure not to. One of those judges, as AL.com noted Monday, was Richard Rives. In 1956, Rives wrote for a 2-1 majority in Browder v. Gayle, finding that racial segregation on Montgomery’s busses was unconstitutional. His granddaughter is Judge Callie V. S. Granade.
