The morning of this writing, a recent ruling by a federal judge that single-sex marriage must be recognized in Alabama went into effect as the Supreme Court decided not to issue a stay pending appeal. Before that happened, however, the Chief Justice of the Alabama Supreme Court issued a memo to state probate court judges – who are in control of issuing marriage licenses in Alabama – telling them that they were not required to obey the federal ruling and that they would be in violation of state law if they did issue licenses. The plaintiffs in the suit have moved to hold the probate judge of Mobile County in contempt for failing to open the marriage license office at all today. Today’s events set up a repeat of one of the most important rulings on federal court supremacy of the 20th century, the Central High School desegregation case from Little Rock, Arkansas, in 1958.
The potential significance of this case prompts me to break from my usual policy of writing about matters that may affect potential clients in Oregon and Washington, where the issue is essentially settled. (If the Supreme Court rules later this year that single-sex marriages need not be recognized, I expect an almost immediate petition to repeal Oregon’s prohibition, and it probably would pass. Washington has allowed single-sex marriages, by state statute, for several years.)
In the 1950s, most southern states resisted the Supreme Court’s ruling that public school segregation was unconstitutional, and most school districts had to be sued individually to be ordered to desegregate. In Arkansas, the Little Rock school board attempted to comply (with some disputes as to whether the desegregation plan was too slow), but in 1957, the governor (backed by the legislature) sent the National Guard to block access to Central High School to the first African-American students. Several weeks later, the local federal court issued an injunction against the governor, and the Guard was withdrawn. After a mob threatened safety at the school, the students had to be removed. Only after federal troops and federalized National Guard were sent to Central High were the students able to return.
During the Central High dispute, the school board asked the federal court for a postponement of the desegregation plan in light of hostile public opinion. In the summer of 1958, the trial court ruled for the district in light of severe unrest. The appellate court reversed, and the Supreme Court upheld the appellate ruling.
The Supreme Court, in the Central High case, made it quite clear that the federal courts had the primary authority to rule on federal law and the constitution. Refusal of a state to comply was a violation of the state officer’s oath to uphold the constitution. The Alabama Chief Justice’s memo in the single-sex marriage case suggests that only the Supreme Court need be obeyed. This is a highly questionable reading of the Supreme Court’s precedent at best.
The Court also noted that for the purposes of desegregation, the school board was acting on behalf of the state, and it had to deal with the direct opposition of the governor and legislature. That the board was acting in good faith in trying both to desegregate and deal with violence was not enough to excuse the state’s acts. This point also resolves the other potential argument from the Alabama Chief Justice’s memo, that the probate judges are not parties to the Alabama lawsuit. (The attorney general is.) The duties of the probate judges in licensing marriages, however, are administrative. They are in the same position as the Little Rock school board, and the Chief Justice is in the position of the governor of Arkansas. If the matter is presented to the Supreme Court, I think its opinion is likely to be similar: the federal court has given an order to the state of Alabama, and that means the probate judges are bound by it unless reversed on appeal.
There is no principled legal reason why the probate judges in Alabama should seriously consider refusing to issue licenses. All they will be doing is angering the federal courts in order to make a political point, and they are likely to provoke a reaffirmation of the principles of the Little Rock case.