Mike Littwin: Alabama, keep your head
February 12, 2015
OK, no one can be surprised that it’s Alabama. Wasn’t it always Alabama? And no one can be surprised that it’s Justice Roy Moore playing the role of George Wallace — or, actually, just playing the role of Justice Roy Moore, the Ten Commandments judge himself.
No one can be surprised because, after all, it’s the latest in a long series of Alabama states’ rights sequels. I’m just waiting for Neil Young to sing about her. And for ol’ Jon Stewart to put her down.
And if you want the prequel, you can just go to your local multiplex and watch “Selma,” which will explain a lot of things to you about Alabama and states’ rights and the Voting Rights Act passed 50 years ago and the Wallace/Moore types who look at federal court orders not as rule of law but as provocations.
U.S. District Court Judge Callie V.S. Granade, a George W. Bush appointee, is the judge who ruled that Alabama’s ban on same-sex marriage was unconstitutional. Granade’s grandfather, Richard Rives, was one of the courageous Alabama federal judges from the civil rights era, judges who faced death threats and who were accused by George Wallace of “tyranny.” Granade, who had been accused of, yes, tyranny by Alabama Supreme Court Chief Justice Roy Moore, had given Alabama time to appeal her ruling. Time ran out Monday, and marriages should have ensued.
You know the story by now. Not all marriages ensued and not in most places because Moore set up a constitutional crisis, ordering Alabama probate judges to ignore Granade’s ruling. Even when the Supreme Court refused to grant a stay, most Alabama judges refused to give out licenses. The default position was not to grant licenses to anyone, gay or straight, which may be only a short-term solution. You can’t really say you’re defending marriage and also refuse to allow anyone to get married.
But the real story of this crisis is that it’s not a crisis at all. It’s a footnote in a chapter at which people will look back and shake their heads in wonder.
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It was Marx — not someone you typically want to be quoting in Alabama — who said that history repeats itself, “first as tragedy, then as farce.” It was Faulkner, from closer-by Mississippi, who wrote, “The past is not dead. It’s not even past.”
Take your pick. The past haunts Alabama, and Moore has made sure that everyone takes a hard look at all the ghosts.
Gov. Robert Bentley, a conservative who opposes same-sex marriage, who went to church Sunday to hear his pastor (according to the Birmingham News) say he needed to “do the right thing” on gay marriage, didn’t miss the fact that Moore is making Alabama look like, uh, Alabama used to look. But he refuses to play the George Wallace role.
“I don’t want Alabama to be seen as it was 50 years ago when a federal law was defied,” he said. “I’m not going to do that. I’m trying to move this state forward.”
You probably remember Moore. He’s the one who had the 2 1/2-ton Ten Commandments monument put in the state’s Judicial Building and then refused to have it removed when a federal judge ordered. That was back in 2002. He became a hero to some, but a state ethics panel managed to overlook the hero part and kick him off the court for refusing to obey a federal court. But Moore didn’t just go away. He ran for governor twice, and then he ran for his old job as Supreme Court Justice, and won. So it’s not just Moore. It’s the people who elected him, too.
And then there’s the other side of the story — the two women who have lived together for 14 years and who brought the case. It began with an addition to the family, a child who was born with a serious heart condition and whom only the birth mother was allowed to treat. And when the “second” mother tried to legally adopt the child, she was denied, because it’s against the law in Alabama. And so, they sued to be able to get married and to gain the rights afforded any other married couple.
And here we are. Alabama becomes the 37th state — or is it the 36 1/4 state? — where same-sex marriage is legal. And it’s the first where a judicial crisis followed.
Everyone understands what’s going on. For Moore, this is a low-stakes gamble. In a few months, the Supreme Court will hear arguments on whether any state can legally ban same-sex unions. When the Supreme Court refused to grant Alabama a stay until the court rules later this year, it seemed more than a hint at how all this will play out.
There were two dissenters to the ruling against the stay. You can guess who they were — Clarence Thomas and Antonin Scalia. In his dissent, Thomas wrote that failing to grant the stay was “indecorous” because it tipped the court’s hand on its same-sex ruling, he suggested, before it had even heard the case.
"This acquiescence may well be seen as a signal of the Court's intended resolution of that question," Thomas wrote.
It’s more than a signal. It’s closer to a loud ringing bell.
As one Alabama judge put it to the New York Times, "At the end of the day, it's still a very simple legal analysis: You've got a federal court order," said Judge Alan L. King of Jefferson County.
He added: "This is a happy day for all of these couples, and if you can't be happy for people, then I'm sorry. If someone can't understand the joy and happiness of others, then I don't know what else I can say."