Alabama foreign law amendment challenges Supreme Court on gay rights, death penalty, Sharia law.

Alabama’s New Constitutional Amendment Overrules the Supreme Court on Gay Rights and the Death Penalty

Alabama’s New Constitutional Amendment Overrules the Supreme Court on Gay Rights and the Death Penalty

The law, lawyers, and the court.
Nov. 5 2014 5:30 PM

Even Crazier in Alabama

Voters just passed a constitutional amendment that would overrule the Supreme Court.

Photo by Larry Downing/Pool/Getty Images
U.S. Supreme Court Justice Anthony Kennedy applauds prior to President Barack Obama's State of the Union speech on Capitol Hill on Jan. 28, 2014, in Washington, D.C.

Photo by Larry Downing/Pool/Getty Images

Few states pass more unconstitutional laws than Alabama. No matter what the subject—from free speech, school prayer, and teaching evolution, to gay rights, abortion, and cruel and unusual punishment—Alabama’s stunningly reactionary laws have been repeatedly smacked down by the federal courts. On Tuesday, however, Alabamans passed a constitutional amendment that aims to neatly remedy its legal losing streak—by overruling the Supreme Court.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

On its face, the amendment appears to be just another absurd and xenophobic effort to outlaw Sharia law; it bars courts within the state from considering international legal principles. But in fact, the amendment goes much further than that. When Oklahoma tried to explicitly ban Sharia law in 2010, a federal judge struck down the measure as unconstitutional religious discrimination because it intentionally targeted Muslims. So Alabama’s amendment excluded any mention of Sharia altogether, choosing instead to “prohibit courts and other legal authorities from applying foreign law if doing so would violate rights guaranteed to citizens of Alabama.”

This sentence might seem toothlessly vague, but it’s a legal hand grenade—one that Alabama now seems poised to lob at the Supreme Court. The motivation behind the new amendment actually traces further back than conservatives’ current Sharia freakout, to about a decade ago. In March 2005, the Supreme Court handed down its opinion in Roper v. Simmons, holding that the execution of juveniles was unconstitutional. Technically, the court—in an opinion by Justice Anthony Kennedy—rested its holding on the Eighth Amendment, asserting that the execution of minors constituted “cruel and unusual punishment.”

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But in a remarkable section at the end of the opinion, Kennedy observed that “the Court has [often] referred to the laws of other countries and to international authorities as instructive for its interpretation” of the Eighth Amendment, citing five previous death penalty cases in which the justices had cited the laws of “civilized nations” to guide their own opinions. Then Kennedy embarked on a CliffsNotes tour of international death penalty law, pointing out the “stark reality” that America remained the only country in the world to officially approve of executing minors. “This reality does not become controlling” of the Supreme Court’s decision, he warned, but “the opinion of the world community … does provide respected and significant confirmation for our own conclusions.”

In dissent, Scalia was predictably furious, hissing that the court’s gesture toward international law “ought to be rejected out of hand.” But the real backlash arose in Congress, where Senate Republicans quickly drafted a resolution condemning the ruling and insisting that constitutional interpretation “should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions.” For execution-hungry conservatives, Roper was the tipping point: Just a few years before, Justice John Paul Stevens, writing for the court, had cited international law in outlawing the death penalty for intellectually disabled people, building on a series of cases that expressed concern over America’s lonely plight to execute anybody it so chooses.

Congress’s anti-international-law hysteria has been most pronounced in capital punishment cases, but also has origins—as do so many other paranoid policies—in homophobia. Republicans, quite predictably, were already ruffled by the court’s cosmopolitan outlook on gay rights. In 2003’s landmark Lawrence v. Texas, the justices held that no state may criminalize same-sex sodomy, in accordance with the 14th Amendment. Lawrence overturned Bowers, a 1986 case that reached the opposite conclusion. Bowers featured an obnoxious concurrence by Chief Justice Warren Burger, declaring that anti-gay laws are “firmly rooted in Judeo-Christian moral and ethical standards” and can be found “throughout the history of Western civilization.”

In his Lawrence opinion, Kennedy decided to push back against Burger’s flawed history. First, Kennedy debunked Burger’s utterly erroneous claim that the United States, or any other country, had longstanding laws barring gay sex. Then Kennedy noted that Burger had ignored the modern trend of international law, pointing to pro-gay decisions by the British Parliament and the European Court of Human Rights as proof that “Western civilization” was quickly incorporating gay tolerance into its “moral and ethical standards.”

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The international law component of Lawrence is brief and, frankly, extraneous. But it set off a firestorm among congressional Republicans, more than 50 of whom signed on to a resolution condemning the use of foreign law in American courts. (One of the resolution’s sponsors suggested that any judge who relies on international law should be impeached.) Of course, the notion that Lawrence—or any of the death penalty cases—actually hinges on international law is preposterous; clearly, the justices simply used world standards to substantiate their own constitutional views. But for conservatives, the mere use of such law constituted a profound violation of the justices’ constitutional duties.

Although Kennedy remains enamored of foreign law, he and his more liberal colleagues have largely dropped it from their opinions, likely hoping to avoid the ridiculous controversies that followed Lawrence and Roper. The foreign law brawls of the mid-aughts seemed, for a time, largely settled—but Alabama just revived them. By barring the “application” of “any law, rule, or legal code system used outside of the United States,” the amendment aims to nullify Supreme Court decisions that lean on foreign law.

What would that mean in practice? According to the amendment, any decision that uses international law could not legally be applied in Alabama courts, since citing it would involve the “application” of foreign law. A state judge couldn’t overrule the execution of a minor based on Roper, since Roper relied in part on international law. Nor could she annul the conviction of a gay person for having gay sex, since Lawrence cited foreign courts. The execution of the mentally retarded, too, would be back on the table in Alabama; in fact, much of the Supreme Court’s modern death penalty jurisprudence would now seem to be inapplicable in the state. This is not some speculative overinterpretation of a poorly worded amendment; overturning established death penalty law was a stated goal of the amendment’s chief drafter. No doubt a team of lawyers is already poring over Supreme Court rulings, searching each decision for a reference to international law. Once they’ve found one, they can alert state judges: Use this ruling, and you’ll be breaking the law.

This gambit, while admittedly inventive, is surely doomed. The Supreme Court retains supremacy in all federal questions; even Alabama can’t wriggle out from under its control, no matter how much it hates the high court’s rulings. If a state court judge were to send a minor to death row, or a gay couple to prison, these victims of Alabama’s twisted sense of justice could still find refuge in federal courts, where Roper and Lawrence remain good law.

Still, Alabama’s eagerness to try is a disturbing indication of just how disrespectful the state remains toward fundamental rule of law. Alabama discarded its anti-gay sodomy law only this summer, 11 years after Lawrence. In 2012, it so egregiously violated constitutional safeguards for death row inmates that even Justice Samuel Alito put his foot down. The state’s contempt for federal authority is alarming and indefensible, and its capacity for constitutional chicanery seems to know no bounds. For years, Alabama watched as the Supreme Court struck down its outrageous laws. With its latest amendment, the state devised a solution as brazen as it is appalling: If Alabama’s laws can’t survive the Supreme Court, just kick the Supreme Court out of Alabama.