Justice Thomas objects to court’s signal on gay marriage
The Supreme Court is inappropriately signaling it intends to clear the way for gay marriage across the nation, Justice Clarence Thomas complained Monday in a stinging dissent to the court’s refusal to block the start of same-sex marriages in Alabama. Bitterly objecting to Monday’s action, Thomas provided a rare insider’s perspective on the widely held view that the court’s embrace of gay marriage is a done deal. Thomas filed a dissenting opinion after his colleagues rejected Alabama’s plea to put a hold on same-sex marriages in the state until the Supreme Court resolves the issue nationwide in a few months. He criticized his fellow justices for looking “the other way as yet another federal district judge casts aside state laws,” rather than following the customary course of leaving those laws in place until the court answers an important constitutional question. “This acquiescence may well be seen as a signal of the court’s intended resolution of that question,” Thomas wrote in an opinion that was joined by Justice Antonin Scalia. “This is not the proper way” for the court to carry out its role under the Constitution, he wrote, “and, it is indecorous for this court to pretend that it is.” The opinion was remarkable less for the legal result it suggested than for its open criticism of fellow justices. After all, many legal commentators have predicted not only the case’s outcome this spring (in favor of same-sex marriage), but the vote (5-4) and the author of the majority opinion (Justice Anthony Kennedy). The number of states in which gay and lesbian couples can marry has nearly doubled since October, from 19 to 37, largely as a result of terse Supreme Court orders that allowed lower court rulings to become final and rejected state efforts to keep marriage bans in place pending appeals. “If you read the tea leaves the Supreme Court is leaving, the bans on same-sex marriage can’t be permitted. They’re unconstitutional,” said University of California-Berkeley law professor Jesse Choper. Alabama became the 37th state in which same-sex couples can marry, following U.S. District Judge Callie Granade’s ruling in January that struck down as unconstitutional the state’s statutory and constitutional bans. Granade had put her order on hold until Monday to let the state prepare for the change, and State Attorney General Luther Strange had asked for the delay to be extended for at least a few months. Monday morning, probate judges in Alabama began issuing marriage licenses to same-sex couples, some of whom had been lined up for hours. “It’s about time,” said Shante Wolfe, 21, as she left the courthouse in Montgomery with wife Tori Sisson. They had camped out in a blue and white tent to be the first in the county given a license. The Supreme Court often freezes lawsuits in place when they raise the same issue the court already has agreed to decide. And when federal courts declare state laws unconstitutional, “our ordinary practice,” Thomas wrote, is to prevent those rulings from taking effect while they are being appealed. But since October, the justices have repeatedly turned away state requests to keep same-sex marriages from taking place until appeals are resolved. Alabama’s plea was the first since the court stepped into the issue last month to take up a decision by the 6th U.S. Circuit Court of Appeals to uphold laws in Kentucky, Michigan, Ohio and Tennessee that define marriage as the union of a man and a woman. The court has been silent about the reasons for its actions in the gay marriage cases. It similarly offered no explanation for orders in a series of challenges to state voter ID and registration laws in the fall, or for a decision to allow an execution in Oklahoma to proceed eight days before deciding to hear a challenge to the controversial sedative the state uses in lethal injection executions. “Part of what gives us all a sense of finality and a sense of acceptance about decisions is knowing that the court has thought about it,” said University of Chicago law professor Will Baude, a former law clerk to Chief Justice John Roberts. Baude uses the term “shadow docket” to refer to unexplained orders. “For the public at large, that can over time harm the court’s legitimacy.” Thomas has previously made known his support for keeping the same-sex marriage prohibitions in place until the court issues its decision. Although he did not note it in October, he later said he had voted at that time to take up gay marriage when the court rejected appeals from five states seeking to preserve same-sex marriage bans. Thomas and Scalia also have been in dissent from the three major pro-gay rights decisions at the Supreme Court since 1996, all written by Kennedy. When the court struck down part of the anti-gay marriage federal Defense of Marriage Act in 2013, Roberts and Justice Samuel Alito also dissented. Michael Dorf, a former Kennedy law clerk who teaches at Cornell University, said the absence of Roberts and Alito from Thomas’ dissent Monday suggests those justices could be part of a broader majority in favor of same-sex marriage this year, with Roberts the more likely candidate. Other than that, Dorf said, the justices’ order allowing same-sex marriage to begin in Alabama, “is further evidence that the court intends to reverse the 6th circuit and find a constitutional right to same-sex marriage.” Republished with permission of the Associated Press.
Alabama’s chief justice tells judges: Refuse gay marriage licenses
Tori Sisson and Shante Wolfe camped in a blue and white tent outside the Montgomery County Courthouse during the early hours Monday, hugging and talking excitedly of getting married soon. Despite an 11th-hour move from the state’s chief justice ordering judges to refuse to issue marriage licenses to gay couples, Sisson and Wolfe hoped to be the first in Alabama to get one Monday morning. A federal judge’s order overturning the state’s ban on gay marriage will go into effect, making Alabama the 37th state to allow gays and lesbians to wed. And the U.S. Supreme Court on Monday morning denied the state attorney general’s request to extend a hold on the order overturning the ban, paving the way for marriages to start. “It’s about time,” Wolfe, 21, said of gay marriage being allowed in the Deep South state. Chief Justice Roy Moore sent his order to state probate judges Sunday night. He argued that judges are not bound by the ruling of a federal judge that the gay marriage ban is unconstitutional. It was a dramatic return to defiance for Moore, who was removed as chief justice in 2003 for refusing to obey a federal court order to remove a washing machine-sized Ten Commandments from the state judicial building. Critics lashed out that Moore had no authority to tell county probate judges to enforce a law that a federal judge already ruled unconstitutional. He’s been one of the state’s most outspoken critics of gay marriage; in 2002 he called homosexuality an “evil” in a custody ruling. “This is a pathetic, last-ditch attempt at judicial fiat by an Alabama Supreme Court justice—a man who should respect the rule of law rather than advance his personal beliefs,” said Sarah Warbelow, legal director of the Human Rights Campaign. Warbelow urged probate judges to issue the licenses in compliance with ruling of U.S. District Judge Callie Granade. Susan Watson, executive director of the American Civil Liberties Union of Alabama, predicted that “we will see marriage equality in Alabama” on Monday. “I don’t think the probate judges in Alabama are going to defy a federal court judge’s order,” she said. On Jan. 23, Granade ruled that the state’s statutory and constitutional bans on gay marriage were unconstitutional but put her order on hold until Feb. 9 to let the state prepare for the change. Moore said Granade had no authority to order the change and that Alabama courts could do as their judges saw fit until the U.S. Supreme Court ruled. Last week, Moore sent a letter urging probate judges to reject the licenses. The head of the judges’ association on Friday predicted most would issue the licenses. Moore upped the ante Sunday night by sending the directive. “Effective immediately, no probate judge of the state of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent with (the Alabama Constitution),” Moore, who serves as head of the court system, wrote in the letter sent Sunday night. Gay couples are expected to still line up at courthouses across Alabama on Monday seeking to get married. It was unknown how many of the state’s probate judges would follow Moore. Granade has said while judges were not a party in the lawsuit, they have a legal duty under the U.S. Constitution to issue the licenses. Moore has been one of the state’s most outspoken critics of gay marriage. He called homosexuality an “inherent evil” in a 2002 custody ruling against a lesbian mother. It was unclear what, if any, enforcement provision Moore has. Probate judges are elected just as the chief justice is. Moore’s letter to the probate judges said Gov. Robert Bentley can take action against elected officials who fail to follow the law. Jennifer Ardis, a spokeswoman for Bentley, said she did not know about Moore’s letter and did not have an immediate comment Sunday evening. Alabama Attorney General Luther Strange has asked the U.S. Supreme Court to put a hold on Granade’s order because justices are expected to issue a ruling later this year on whether gay couples have a right to marry nationwide. The high court had not ruled on the state’s request with just hours to go until courthouses open on Monday morning. Outside the Jefferson County Courthouse in Birmingham, about half a dozen same-sex couples waited outside early Monday. Jessie and Cooper Odell brought their son with them to witness their marriage. Jessie, 42, said he was surprised by the speed with which Alabama’s ban on same-sex marriage fell. “I knew it was coming, but not this fast with our history on civil rights,” he said. Republished with permission of the Associated Press.
