Diary

Gay Marriage in Alabama: Relax & Take a Deep Breath

It seems that everyone here has their knickers in a twist because the US Supreme Court refused to extend a stay on a lower court ruling on gay marriage in Alabama.  Some are saying that this foretells the future since they have a case before them to be heard in April with a decision likely in June.  You need to understand this in perspective and how the courts operate.

Alabama is part of the 11th Circuit along with Florida and Georgia.  Decisions reached within Circuits are binding on all courts within that Circuit.  There may be similar cases being litigated in different lower courts- the Federal District Courts- simultaneously.  That is what happened here.  An earlier case out of Florida struck down their ban on gay marriage.  Florida appealed to the 11th Circuit which sided with the District Court leaving their decision to strike down the ban on gay marriage in place.  Once this happened, that decision is binding on all courts within that Circuit.  Hence, the District Court in Alabama was obliged to do the same using the same reasoning for striking down the ban as that which existed in the Florida case.

The case before the Supreme Court originated out of Michigan which is in the Sixth Circuit.  A three-judge panel of that Circuit ruled 2-1 coming to the opposite conclusion of the 11th and several other Circuits and allowed a gay marriage ban to stand.  It makes no difference if- until the Supreme Court rules- the circumstances between Alabama and Michigan may be identical.  In fact, both states amended their state constitutions after a referendum.  Both states used the same arguments before the District and Appeals courts.  In one instance the states won; in the other they did not.  That is what the Supreme Court is there for- to step in and decide which is constitutionally correct.  Otherwise, you would have gay marriage in the United States…except Michigan, Ohio, Kentucky and Tennessee.  Furthermore, different Circuits struck down various gay marriage bans for a variety of reasons.  The Court must further wade through the correct constitutional rationale for going one way or another.

Getting back to Alabama, as mentioned earlier, the lower district court was obliged to strike down the ban based upon the Florida decision which was binding within the 11th Circuit and for the reasons they cited.  Those courts also issued a 14-day stay which expired on February 9th.  The appeals court and the lower district courts refused to extend the stay which is why Alabama made an emergency petition to the Supreme Court to extend the stay pending their decision in the Michigan case in June.  It is this denial which has upset so many and led even more to jump to conclusions.

When these emergency appeals reach the Supreme Court (death penalty appeals are the most common), they are referred to the Justice in charge of that Circuit.  That Justice then has three choices- (1) they can rule on the petition themselves and issue a stay, (2) they can issue a temporary stay and refer the issue to the full Court to determine if a further stay should be granted, or (3) they can bypass (2) and refer the petition to the whole Court.  Apparently, option (3) was chosen here which is why we have what we have- a “dissent” opinion that is not a dissenting opinion.  It was written by Clarence Thomas who also happens to be…wait for it… the Supreme Court Justice in charge of the 11th Circuit.

In fact, dissents or even a written statement in these types of emergency appeals are extremely rare.  Thomas was warning that before a single argument was heard on the issue, people will wrongly get the impression that the Supreme Court has already made up their mind on this issue and that the case out of Michigan is just for show.  Most likely, many Justices probably have made up their mind, but that is not unique to gay marriage cases.  They usually make up their minds based upon briefs filed, not oral arguments made.  Likewise, because another Justice signed on to Thomas’ dissent here does not mean the vote will be 7-2 in the Michigan case, or even that it was 7-2 in this instance.  It takes four Justices to grant a petition.  Obviously, the vote here was 6-3, 7-2, or 8-1.  Yes, Scalia can join Thomas’ opinion (correct though it may be) and nevertheless VOTE not to grant the stay.  The reason he joins it is because of the reasoning.  And granted, the denial of the stay did stray from general practice as Thomas notes in his opinion.  However, too many people are reading way too much into this.

When these emergency appeals are granted or denied, there are rarely any associated written opinions, nor do we know what the final vote was, how anyone voted, or the reasons for the vote.  Read Thomas’ opinion.  Nothing in it should give anyone an indication on how the Court will rule in the Michigan case.  It was a diatribe about straying from convention and warning that people will read too much into it, which is what has apparently happened.

The reactions here and elsewhere on the Right are as comical as those on the Left and their analogies to the South’s reaction to racial desegregation.  The National Guard is not going to be entering city halls and courthouses throughout Alabama to force state or local officials to marry gay couples at gun point.  Neither is this the great foretelling of the future and how the Supreme Court will rule in the Sixth Circuit case.

I happen to agree with Thomas, but not because the Court strayed from accepted practice, standards and convention, but because of the gay couples who may get married.  Until the Supreme Court makes a definitive decision on gay marriage- and the case in April has that potential- any gay married is living in marriage limbo.  It is possible they can uphold state bans while allowing those who were already married to have those marriages recognized, but that would be playing Solomon well after the fact.  Most important will be the reason they uphold state bans on gay marriage, or not.

One final word: it is difficult to predict this Court.  Just when you think you have them figured out, they throw a curve ball.  If I had to, I would say there are four rather firm Justices in favor of gay marriage, and three firm votes for the right of states to ban gay marriage.  As usual, these contentious issues come down to one or two Justices.  Many, many people are assuming a 5-4 decision with the Windsor majority holding up.  Before one relies too heavily on that analysis, I believe the Schuette  affirmative action case from last term can be more instructive.  But more on this at a later date.

Until then, my suggestion is to relax, take a deep breath, kick up your feet and pop open a beer (or soda, or water).  Let’s save our anger, our submission to the inevitable, or our joy for June.