Please ensure Javascript is enabled for purposes of website accessibility

Alabama’s probate judges are in an unnecessary ‘sticky wicket’

The U.S. Supreme Court on Monday denied the application of the Alabama attorney general to stay the mandate of a federal district court striking down the state law banning same-sex marriage. Once the order was issued by the high court, same-sex marriages almost immediately began to occur in Alabama, making it the 37th state to permit these unions.

However, unlike other states that saw their gay marriage bans judicially declared unconstitutional, Alabama has not accepted the result with the grace and dignity of an non-victorious “good sport.”

The federal district court’s temporary stay was set to expire Monday if the Supreme Court did not act on the state’s stay application. So, on Sunday night, prior to the Supreme Court’s order, Alabama Supreme Court Chief Justice Roy S. Moore exercised his “authority” as the administrative head of the state’s court system and issued an order forbidding all probate judges from issuing marriage licenses to same-sex couples. (Probate judges are similar to clerks of the court in Maryland.)

Despite this fiat from the Alabama chief justice, probate judges in the state’s largest counties began issuing licenses to same-sex couples Monday morning, and marriages were almost immediately performed.

The issue of gay marriage seemingly will be settled by the Supreme Court this year. The Court’s resolution of this core civil right emanating from cases before it from the 6th Circuit almost seem to be a foregone conclusion; at least Justice Thomas thinks so.

However, I find it reprehensible for Moore to issue an order directly contrary to a federal district judge and the U.S. Supreme Court. As we all know from history class, and the movie “Selma,” Alabama has been on the wrong side of history with regards to civil rights in the past, and in 2015, the state is not looking much better.

The Editorial Board of USA Today put it well in an op-ed article on Tuesday:

Not only is Moore’s stance wrong, it recalls a shameful history of Southern resistance to civil rights for African Americans in the name of states’ rights. Flouting the law is what Arkansas Gov. Orval Faubus did in 1957 when he sought to keep nine black students from enrolling in a Little Rock high school after the Supreme Court had struck down desegregation. And it’s what Alabama Gov. George Wallace did in 1963 when he tried to stop black students from integrating the University of Alabama. Both ultimately lost. And both turned out to be on the wrong side of history.

Alabama’s current governor, Robert Bentley, understands Alabama’s place in history with relation to civil rights. Bentley noted to the Associate Press that Alabama is about to be in the spotlight again with the 50th anniversary of the Voting Rights Act of 1965, which was passed after civil rights marchers were attacked and beaten in Selma.

“I don’t want Alabama to be seen as it was 50 years ago when a federal law was defied,” Bentley told AP. “I’m not going to do that . . . I’m trying to move this state forward.”

Moore might just be grandstanding for the public to justify his reelection as Alabama’s chief justice after previously being removed from that post (side note: don’t get me started on my position regarding popular election of judges) but he has placed probate judges in a difficult situation by issuing his order (which directly contradicts the rule of law and the constitutionally prescribed notion of federalism).

However, this quandary is something any young lawyer can find themselves in: have you ever found yourself in a situation where you are forced to balance doing what you think is right versus what you were asked to do? How would you represent or enforce a law you don’t believe in?