Roosevelt Institute | Cornell University

Same Sex Marriage, the Supremacy clause and the State of Alabama

By David TaylorPublished February 18, 2015

Chaos in Alabama as State Chief justice, Roy Moore, issues an order to probate judges to halt the issuing of marriage licenses to same sex couples defining federal courts order. The broad support in Alabama for Chief Justice Moore's action will not be enough to supersede the supremacy of the Federal Court.

There has been great progress towards achieving marriage equality in recent years. Same sex couples can now marry in more states than ever, thanks to court proceedings and changes in public opinion. Earlier in February the Supreme Court refused to step in to stop gay marriages from taking place in Alabama. The move by the Supreme Court foreshadows the expected nationwide ruling on the constitutional merits of same-sex marriage bans expected by early June. Justice Thomas, along with multiple Gay rights groups, sees the court's move as a ‘signal of the court's resolution'. The Justices action is reminiscent of the push back against the Brown vs. Board Education in the Southern States. For example, Senator Harry Byrd of Virginia organized massive resistance closing schools and providing other measures to resist integration. Like the opposition to the civil rights movement and integration: the fight against same sex marriage will fall to the inevitable march of time and progress.

The defiant stance that the Chief Justice Moore has taken to stop gay marriages from occurring is not just hopeless but also has no basis or legal standing. A State Judge is unable to ignore or defy an order from a Federal Judge. Justice Moore, while popular, cannot triumph over the Supremacy clause because the laws of Alabama are not greater and cannot be in opposition to Federal Law.

While Moore's actions are unconstitutional and prejudicial, it is not the first time he has been at odds with the role of the federal government in state governance. In 2003 Chief Justice Moore erected and refused to take down a statue of the Ten Commandments from the Alabama Justice System Building even after a Federal Courts order. The Chief Justice has made it clear that his belief that the United States is a Christian nation and that the federal judiciary is overreaching its power. His beliefs on probate judges being exempt from Federal authority, while sincere, is unsupported by actual precedent and law. Justice Moore draws his argument from a belief that the Federal Government and by extension federal judges have no authority in regulating the states on an issue like marriage.  Drawing from the tenth amendment, he and many other critics of federal intervention in debates over marriage, view the jurisdiction has been reserved to the states. Moore, as previously expanded upon does not have recent precedent on his side; with previous marriage restrictions being lifted, and the decision of the Supreme Court likely to come this summer.  The Federal Judiciary has become a far less passive branch; issues that were only a few years ago decided in the states or Congress are being debated and fought in the court. In an increasingly partisan Congress the road for social reform has come through the Courts. Despite the obvious importance of the fight for equality that is occurring in Alabama one of the more contentious issues are the fundamental roles of the Federal Government. Justice Moore and other more conservative judges or constitutional scholars will be at the forefront of this debate that has been ongoing since the Constitutional convention.

Figures like the Justice Moore will not simply be carried away as progress is made towards equality. Justice Moore has a sincere belief shared by many Americans that The United States was founded upon Christian principles and values. Despite attitude changes across the country, History shows that although the progress on the issue is made the constitutional arguments and judicial radicals that rise up to take on the Federal Government aren't going anywhere.

Progress has been made and some same sex marriages are even being held in Alabama. This action by the Chief Justice and the support in Alabama for his action should be a wake up call to keep the momentum and support for the marriage equality movement. Justice Moore believes that "one Nation Under God" should define the values of this country, I, on the other hand, find more merit in the line that follows: "with Liberty and Justice for all".