…in Alabama. This is sort of extraordinary.
We’re not taking a position on the underlying issue; that is, whether there’s a constitutional right to marry another person of the same sex. We would note only: 1) that once the SCOTUS waded into the whole marriage thing with Loving v. Virginia, holding that “miscegenation” laws were unconstitutional, it became difficult to see the boundaries of the fundamental constitutional right to marry; and 2) the necessary implications for polygamous marriages are too obvious to belabor. There is no honest, principled way to hold that there’s a right to same-sex marriage while denying that this same right would include polygamous marriages. And maybe that’s a Good Thing.
In any case, the real story here is that this is something of a constitutional crisis down there in Alabama. That it is Alabama and not, say, Louisiana, is on the face of it fortunate for same-sex marriage-is-a-constitutional-right advocates echoing, as it does, the notorious role of Alabama in some of the civil rights struggles of the 1950’s and 60’s, and of course those advocates really like that comparison.
On the other hand, there are pitfalls here. At some point the moral equivalence of sexual orientation discrimination and racial discrimination, which has been an appealing line of argument, could break down, and that might be a real setback for the gay rights cause. We’re not saying it will or won’t (break down, that is) but we find it difficult to imagine that fire hoses are going to be turned on anyone over a same-sex marriage debate that is taking place not so much in the streets but in the courts:
And it’s equally difficult to imagine that Washington will send troops to force clerks and judges to issue marriage licenses. But at this point a scenario is developing where the Alabama state officials involved are going to be necessarily violating someone’s court order – state or federal – because it’s not possible to comply with both. What if it pans out that some officials go one way and others go the other way? So you can’t get your marriage license in one county you just drive over to the next one? Is there going to be any civil unrest over that state of affairs? Again, difficult to imagine, not to mention that’s pretty much how it’s panning out already:
It is undisputed that at that time respondent probate Judges King, Martin, Ragland, and Reed began issuing marriage licenses to same-sex couples in their respective counties. Probate judges in some other counties refused to issue any marriage licenses pending some further clarification concerning their duty under the law. Still other probate judges continued to issue marriage licenses to opposite-sex couples and refused to issue marriage licenses to same-sex couples.
But the deeper problem, if indeed that’s how it pans out in Alabama, pertains to the idea that the United States Supreme Court is the ultimate law-giver. Certainly that has been the popular perception, but it’s never been as intellectually secure as the SCOTUS worshipers would like.
For quite some time, the SCOTUS held off on doing anything about the same sex marriage issue. It was playing out in the states and localities of the country quite nicely without constitutionalizing it, but some federal appeals court judges forced their hand and now they’ve indicated they’re going to make a ruling. It appeared there was a fragile consensus on the SCOTUS that maybe they should just stay out of it.
Too late for that now, though. SCOTUS is in the soup now, and so are the rest of us.