For those who aren’t familiar with him, Moore was tossed from his previous stint as AL Chief Justice for refusing to take down a 10 commandments sculpture thing from the entrance to the supreme court building.
SCOTUS just denied the stay. I’d expect Moore to stay defiant, in Alabama he can politically afford to do so and strengthen his ideological bona fides with the ultraright faction.
… and now we have warring counties. Some are following the Federal ruling, some are enforcing Moore’s overall stay on all licenses, and a couple of judges and clerks are splitting the difference and saying they’ll issue licenses but will not themselves perform the ceremonies.
I wonder if the warring counties thing (which is happening in several places) weighs on SCOTUS at all? Is this going to cause someone like Roberts to consider that creating a patchwork of laws around the country is a giant mess, especially considering the number of marriages that have been granted and the headaches it would cause to suddenly void those marriages.
There are only warring counties because Roy Moore thinks he’s above the law. Not SCOTUS’ fault. Warring states, sure.
Marriages are happening in Alabama in some counties.
Some counties are issuing licenses but the judges won’t perform the ceremonies for anyone. This is not a big deal. They can get a different officiant and many people are offering that service for free just outside the courthouses.
Some counties aren’t issuing licenses at all to anyone.
Now I know that there are some people, some of whom post here at this very board, who were concerned about the effect that this would have on the good people of Alabama and that there would be mass confusion in getting ready for this. You will be relieved and perhaps surprised to know that no disasters, natural or otherwise, have occurred so far. The seemingly insurmountable task of designing and printing an alternate form of application that didn’t say “bride and groom” was, amazingly enough, able to be complete in a couple of hours. They will also be pleased to know that the confusing “patchwork” of different laws, and who in their right mind is ok with a patchwork of laws, is now less confusing.
So as a probate judge, who are you “supposed” to listen to? I guess as a practical matter following either order won’t get you into too much long-term trouble, but is it a settled matter of law who they’re supposed to obey at the moment? If I was a probate judge I’d be pretty unhappy about the situation, although I guess you can do whatever you want and then just say you were following a ruling from a higher court when people get mad at you.
Any trouble they get into for not following Moore’s orders is likely temporary. The other way around, probably not.
Thanks to ThinkProgress for finding this gem in Clarence Thomas’ dissenting opinion on the Court’s refusal to stay the Alabama hearing;
[QUOTE=Clarence Thomas]
When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review… Yet rather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013) (slip op., at 25–26). **This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. ** (emphasis mine)
[/QUOTE]
It would seem that the Honorable Justice Thomas believes the odds of SSM bans being upheld by his fellows are slim at best.
Well, it takes five to agree to a stay, which suggests that there aren’t five votes for the state (if there were there’s no way they’d allow the marriages now, then in four months walk that back). In that sense the Court is basically telegraphing what they are going to do. But they sent that message back in October when they didn’t take any of the cases from the 4th, 7th, or 10th Circuits. Perhaps in a few decades’ time when we see their papers we’ll find out why they didn’t grant cert then.
I doubt it. SSM had 4 votes in the bank. My guess is the swing is Roberts and he’ll never write it down, but he’s smart enough to not want to be this generation’s Taney.
Sorry to quote myself, but on reflection, it’s 6-3 against the bans. Kennedy will be fine with the fait accompli. Roberts will do it for his legacy.
That is what I think will happen as well. Additionally, if Roberts votes with the majority, he gets to craft the opinion which he might be able to make more narrow.
I could even see Alito going for it (though that would be a big longshot). Thomas and Scalia, never.
Thomas and Scalia have both been seeing the writing on the wall since Lawrence. I find it somewhat ironic that it was the most conservative justices who first saw what the court’s (correct) earlier holdings meant when taken to their logical conclusion. The justices in the Lawrence majority were at pains to point out that their decision did not mean states were obligated to allow same sex marriage.
Brad Takei linked to thison Facebook, looks like things aren’t going smoothly in Alabama. Shockingly…
I’m no fan of Clarence Thomas, but he did write separately in Lawrence to say that while he thought states had the power to pass laws making homosexual conduct illegal, it was stupid and they shouldn’t. He’s just not going to find new individual rights, that isn’t how his view of jurisprudence works.
I don’t see why people think Roberts is going to vote to overturn states’ SSM bans. His dissent in Windsor made his thoughts on the subject pretty clear. If he was just thinking tactically, he could have joined the majority in Windsor and tried to get this language in the holding rather than dissent:
[QUOTE=Chief Justice John Roberts, US v. Windsor]
But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” . . . may continue to utilize the traditional definition of marriage.
[/QUOTE]
If he’d done that, the various district courts might not have used Windsor so freely to overturn same-sex marriage bans. Or maybe they would have anyway, I guess we can’t know. But Windsor would have been a great opportunity for this, since DOMA raised serious federalism questions that a conservative justice could consistently oppose, while building up a bulwark for the states to continue to deny same sex marriages if they wanted to.
It’s possible that his thinking has evolved on the subject. Perhaps the rising, now majority, support has weakened the “traditional definition of marriage” in his mind. I know that I, a long-time supporter of SSM, am personally stunned by just how fast public opinion has moved on this subject. Much faster, in fact, than interracial marriage ever moved. Maybe back at Windsor, he didn’t support it personally or judicially, but also saw which way the wind was blowing and didn’t want to box himself in on any future decision (strategic rather than tactical thinking).
In addition, they can’t get the four votes needed to extend or create any stays. What is really telling is the recent Alabama one which was after the Circuit split. We know where Thomas and Scalia stand. We can probably guess about Alito. Why wouldn’t Roberts be the fourth vote?
Do we have the vote total on the stay requests? It’s possible some of the conservatives abstained due to conflicts.