Alabama ‘Standoff’ on Gay Marriage Is Just Federalism

Anthony Devlin/PA Wire URN:21012772 (Press Association via AP Images)
Anthony Devlin/PA Wire URN:21012772 (Press Association via AP Images)

The mainstream media are reporting the “standoff” over gay marriage in Alabama as if the state’s Chief Justice, Roy Moore, is the reincarnation of (Democrat) George Wallace, standing in the schoolhouse door, defying the federal government over desegregation. The meme suits the gay rights movement perfectly, as activists have long likened the struggle for marriage to the struggle against Jim Crow anti-miscegenation laws. Yet Moore is simply following the Constitution, not defying it.

In our federalist system, the state courts have concurrent jurisdiction regarding interpretations of the Constitution until the U.S. Supreme Court rules to the contrary. Federal district and appellate court decisions against the interpretations of state courts, until affirmed (or merely denied certiorari) by the Supreme Court, have merely persuasive authority, not controlling authority. Therefore Moore is well within his powers to say the state will continue with business as usual on gay marriage.

Because Alabama marriage licenses are issued by probate courts, and probate courts fall within Moore’s authority, those probate judges that are not directly bound by the federal court’s decision to allow gay marriages must obey Moore’s order to stop issuing licenses for those marriages. And, as Moore has pointed out, even though the Supreme Court denied a stay on the federal court decision, that stay did not decide the substance of the case, nor did it apply to any other probate court.

All of this should be fairly obvious. The Supreme Court is going to make a definitive ruling this term about whether gay marriage is a matter of constitutional right. So the law is unsettled as a constitutional matter, and until it is settled, the states are free to do more or less what they want. In fact, if there were no controversy among the different states and federal circuits, there would be no Supreme Court case.

Yet the media find the Wallace analogy too tempting to resist.

Senior Editor-at-Large Joel B. Pollak edits Breitbart California and is the author of the new ebook, Wacko Birds: The Fall (and Rise) of the Tea Party, available for Amazon Kindle.

Follow Joel on Twitter: @joelpollak