On Tuesday night, the Alabama Supreme Court had a humiliating and highly public meltdown. In a 148-page opinion, the justices held that Alabama’s gay marriage ban remained valid—purporting to overrule a federal judge who recently struck down the ban and ordered probate judges throughout the state to issue marriage licenses to gay couples. Only one justice dissented, while another concurred; the other seven joined a bizarre, prolix, occasionally unintelligible opinion that challenges fundamental notions of federal supremacy, constitutional order, and equal protection of the law. It is a gruesome, mangled masterpiece of rambling illogic and venomous vitriol. It is the judicial version of a nervous breakdown, and it deserves to be read in full.
Perhaps the most fascinating aspect of Tuesday’s opinion is that, on its face and by its own terms, it simply does not make sense. Certain portions of the opinion blatantly contradict others, while several sections draw conclusions that are contradicted soon after. (This jumble may be due to the fact that the opinion was issued “per curiam,” meaning it has no single author and was presumably co-written by the seven justices who joined it in full.) Early on, the justices’ main argument seems to be that marriage equality finds no protection in the U.S. Constitution—and that it is unnatural and aberrant:
The family is the fundamental unit of society. Marriage is the foundation of the family. There is no institution in a civilized society in which the public has any greater interest. According to one observer, marriage is a “prepolitical” “natural institution” “not created by law,” but nonetheless recognized and regulated by law in every culture.
That “observer,” by the way, is Robert P. George, whose infamously kinky theory of marriage is, at bottom, fixated on the mythical powers of penile-vaginal intercourse. And, borrowing George’s tactic of disparaging all same-sex marriages as illegitimate, the justices repeatedly put scare quotes around “marriage” and “marriage license” when applying the words to gay couples. This court is not one for subtlety.
Predictably, the justices then pay lip service to the need for the judiciary to duck out and let states define marriage democratically. But, with no apparent self-awareness, these seven elected judges abruptly wade in and settle the issue themselves:
The meaning and significance of marriage as an institution, as prescribed or recognized throughout all of these statutes and all of Alabama’s decisional laws, reflects the truths described above: that marriage, as a union between one man and one woman, is the fundamental unit of society.
These “truths,” the court explains, are derived almost entirely from religion—which, it suggests, is a more reliable foundation for law than any secular institution. (Like, say, the Supreme Court.) And the justices certainly won’t let a mere federal judge stand in the way of marriage “truths”:
[State] courts may interpret the United States Constitution independently from, and even contrary to, federal courts.
After careful consideration of the reasoning employed by the federal district court … we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.
Ah, yes! How could we forget the longstanding rule that the Constitution’s supremacy clause doesn’t apply when the Alabama Supreme Court says it doesn’t?
To be fair, the justices may have a mote of a point here. There is some debate about whether federal district judges can overrule state supreme courts on questions of constitutional law—if the Supreme Court has not yet resolved the matter. Under a very generous reading of this section, the justices might be claiming that because the Supreme Court has not issued a final word on marriage equality, the state supreme court should have the power to reject a lower court ruling striking down the state’s marriage ban.
But then, in their next breath, the justices go and ruin that entire argument by flagrantly contradicting it. A few pages earlier, the justices argued that the Supreme Court’s ruling in United States v. Windsor did not resolve the constitutional validity of state-level marriage bans. Now they argue that it … did (emphases mine):
Supreme Court precedent provides [a] course to justify the conclusion reached by the federal district court: The notion that marriage confers a certain dignity on its participants that the law cannot deprive individuals of simply because they desire to marry a person of the same sex. This line of reasoning comes from Windsor.
Windsor’s “equal dignity” rationale … appears to be a legal proxy for invalidating laws federal judges do not like, even though no actual constitutional infirmity exists. Since the notion is not textual, it is at least incumbent upon federal courts employing it to strike down state-marriage laws to describe in concrete terms what “dignity” state-sanctioned marriage confers and therefore exactly what same-sex couples are deprived of by traditional marriage laws.
Got that? Windsor definitely gives district judges legal authority to invalidate laws that, they believe, deprive gay people of “equal dignity.” And that is precisely what a federal judge did in Alabama. So why does the Alabama Supreme Court still get to overrule her? Because—and this is really the heart of the opinion—Windsor was wrongly decided. Why? Because marriage equality goes against religion, and legislatures should be permitted to cite religious principles when defending their own bans:
By asserting that denying same-sex couples the status of marriage deprives them of “a dignity and status of immense import,” the Windsor Court made a moral judgment that a married couple has more dignity than an unmarried couple. … [This] is not, strictly speaking, a legal judgment … It seems at least disingenuous to find a constitutional infirmity with traditional marriage laws by way of a moral judgment when states have been forced to defend those laws apart from any moral or religious basis, an especially difficult task given that American ideas of marriage indisputably have been shaped by the Jewish and Christian religions. Moreover, because the Windsor Court’s moral judgment is (one must assume) not based on religion, then it must be asked what standard is being used to judge that marriage is better than non-marriage, that it contains some kind of higher dignity than other relationships? Because the notion is not contained in the Constitution, one may question whether it is nothing more than intuitions. At any rate, it is not a legal basis for striking down a validly enacted law.
And there it is. The pretext drops, the fangs come out: The Alabama Supreme Court has the power to restore its state’s marriage ban not because Windsor doesn’t apply, but because Windsor was wrong. Make no mistake: With Tuesday’s opinion, the Alabama justices did not just overrule a federal district judge; they attempted to openly defy the Supreme Court. This is no longer a case about just marriage equality; it is a case about the power to say what the law is. The Alabama Supreme Court wants to claim that power for itself. And it’s daring the U.S. Supreme Court to call its bluff.
