Getting a Rise Out of the South

If America didn’t have the South it would have to invent it. That’s where we get all our colorful characters. The North is dour and driven, full of important people doing important things, and those people never slow down. They’re quite irritating, and the West is far too mellow. Ronald Reagan, a mean-spirited winner-take-all severe conservative if there ever was one, who would let folks die before he’d have their own government help out a bit, had a sunny disposition. That fooled people, and that’s a mellow California thing. Richard Nixon, born out here in Southern California, could never manage that – there wasn’t anything sunny about him, and the only time he was ever laid-back was when he was finally dead – but out here we do have politicians like Jerry Brown, the original Governor Moonbeam, and before him it was Arnold Schwarzenegger, a solid Republican but more goofy than he was conservative. Schwarzenegger never could stop being the over-the-top comic-book action hero he had played in this movie or that, characters he knew were absurd, which made the movies great fun – or he’d revert to doing his Terminator shtick, with a wink and a nod. “I’ll be back.” That was fine. We’re mellow out here. We didn’t mind.

In the South, however, the colorful characters are real, even if they seem like cartoon characters. There was Huey Long – the Kingfish, the populist with that “Every Man a King” song, and in this clip performing it with Ina Ray Hutton. You can’t make this stuff up, and we all know the characters from the Civil Rights days – the hard-ass white-supremacist segregationists from Strom Thurmond to George Wallace. There was Bull Connor too – the ultimate nasty and fat Southern police chief, the guy who loved to turn the police dogs and the fire hoses on black children, because the niggers were getting too uppity. These folks might have come from Central Casting – send over some stock villains for this movie – but Arkansas also gave us Bill Clinton, the charming scoundrel, another Southern type. Think of him as a cut-rate Rhett Butler, but Bill Clinton is real enough. So is David Duke – the former Grand Wizard of the Ku Klux Klan who may run for governor of Louisiana again, and might actually win this time.

That’s just scratching the surface, and all of this is endlessly fascinating to the rest of the country. Who needs William Faulkner’s Yoknapatawpha County – these are real folks in real places – and now the colorful character who can’t be real, but is, is Roy Moore – the current Chief Justice of the Alabama Supreme Court.

He probably shouldn’t be. In 2003, in his first term as Chief Justice, he refused to remove a monument of the Ten Commandments from the Alabama Judicial Building that he has commissioned in 2001 – a federal judge had ordered him to. On November 13, 2003, the Alabama Court of the Judiciary unanimously removed him from his post as Chief Justice – he had refused to comply with a lawful court order. Judges, of all people, shouldn’t do that – but this got a lot of press. It was fodder for Fox News, and for everyone else, it was another glimpse at the amazing South. Where do they come up with these people?

Moore, however, simply said that the federal judges who ruled against his actions obviously consider “obedience of a court order superior to all other concerns, even the suppression of belief in the sovereignty of God.” Bill O’Reilly each year rails against America’s War on Christmas – the country is ganging up on the few remaining Christians, forcing everyone to say Happy Holidays, not Merry Christmas, which is an insult and more than that. America is trying to wipe out Christianity. Roy Moore thinks the same way. The government, and the courts in particular, should promote Christian values and support Jesus and whatnot, no matter what the Constitution says in that Establishment Clause. Moore had his followers. This is the South after all.

Moore the sought the Republican nomination for the governorship of Alabama in 2006, but lost in the primary, and in 2009 he announced he’d try again, and placed fourth in the Republican primary that time. On April 18, 2011, he announced that he was forming an exploratory committee to run in the Republican presidential primaries in 2012, but that went nowhere, so he announced that he would run for his former seat as Chief Justice of the Alabama Supreme Court that year – and he won. The laws of man – in a representative democracy the laws the people’s representatives passed, with their approval – might often be just plain wrong. There’s a higher law – God’s law. He’d enforce that. That’s what the people of Alabama wanted, obviously. We may have a government of the people and for the people and by the people, but when the people are wrong, what God says goes. Sometimes the people have to defer to God. Christians are fine with that, of course. Those who aren’t will have to get over it, at least in Alabama.

Well, it’s Alabama – let them do what they want. The South is its own place, with all sorts of colorful characters like Roy Moore, except that it isn’t its own place. It’s America too, and this was not going to end well, and it didn’t end well:

Despite a federal judge’s rulings legalizing same-sex marriage, most probate judges in Alabama on Monday refused to issue marriage licenses to gay and lesbian couples, escalating a legal showdown that echoed the battles over desegregation here in the 1960s.

Although court officials in some of the state’s largest cities – including Birmingham, Huntsville and Montgomery – quickly issued marriage licenses to same-sex couples, up to 52 of Alabama’s 67 counties, according to the gay rights group Human Rights Campaign, declined to process the required paperwork.

It was unclear how many of the judges were acting out of overt defiance and how many were simply weighing how to navigate a freshly jumbled legal landscape after Chief Justice Roy S. Moore of the Alabama Supreme Court on Sunday ordered the judges not to issue marriage licenses to same-sex couples.

“We’ve got Alabama’s chief justice issuing an order, and we’ve got an order out from a federal judge,” said Judge Greg Norris of Monroe County, who is also president of the Alabama Probate Judges Association. “It’s just a very difficult situation.”

Yes it is, but something happened elsewhere that set Moore off:

The day of escalating events began when the United States Supreme Court said it would not block the ruling by Judge Callie V. S. Granade of Federal District Court, who last month declared Alabama’s marriage restrictions to be unconstitutional.

To some, including Justice Clarence Thomas, who offered a spirited dissent, the failure to order a stay was the strongest signal to date that the court is likely to establish a nationwide right to same-sex marriage. “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,” he wrote, referring to a 2013 decision.

“This acquiescence,” Justice Thomas added, “may well be seen as a signal of the court’s intended resolution of that question.”

Clarence Thomas didn’t like the timing. Nothing has decided at the Supreme Court yet. It would have been better to issue a stay – no gay marriages in Alabama until the Supreme Court rules, later, if they do. No one respects states’ rights anymore, damn it.

That seemed to be the thought down south, as at always is. That’s what the Civil War was all about, and that’s not over yet:

At the center of the turmoil was Chief Justice Moore. On Sunday, less than 12 hours before many courthouses here were scheduled to open, he ordered Alabama’s probate judges not to comply with Judge Granade’s rulings, which he said were incompatible with the scope of her authority.

His position on the balance of state and federal power is one that is deeply felt in a region with a history of claiming states’ rights in opposition to the federal government, and in a state where, more than 50 years ago, Gov. George C. Wallace blocked an entrance to the University of Alabama in a failed bid to block its federally ordered integration.

Although Chief Justice Moore’s Alabama is a different state from the one Wallace led, the state’s top jurist used a stream of letters, orders and opinions to insist that in the same-sex marriage cases, Judge Granade, an appointee of President George W. Bush, had moved beyond her jurisdiction.

There was this kind of thinking:

The chief justice’s order reverberated elsewhere, in places like Elmore County, where Judge John E. Enslen said he would not issue marriage licenses to same-sex couples.

“The federal judiciary has no authority under the Constitution to inquire into a state’s reasoning for its public policy positions on marriage any more than the federal judiciary could question Alabamians’ selection of a state bird,” Judge Enslen said in an email.

Noah Feldman, a professor of constitutional and international law at Harvard, says that might not be so:

The good news is that at least some Alabama probate judges have enough common sense to ignore Moore’s order and follow the U.S. Constitution as interpreted by the federal district court. Even as a matter of Alabama law, it’s unclear that Moore has the official authority to order the probate judges to obey his interpretation of the Constitution rather than the federal courts.

The bad news is that other state probate judges appear to be listening to Moore, and were not issuing licenses as of Monday morning. The only way to get married in Alabama is to get a license from a probate judge or a county clerk who answers to a probate judge. That means Moore is actively – and in part, effectively – standing in the way of the implementation of the federal court’s order.

Is Moore justified as a legal matter? The answer, I believe, is no.

And that’s where it gets complicated:

When Moore first expressed his opinion in a letter to Alabama’s governor, Moore’s position is based on the view, widely shared by state supreme courts and many law professors, that state courts aren’t bound by interpretations of federal law or the Constitution that are issued by U.S. district courts or U.S. courts of appeal. According to this view, which the Supreme Court has never officially adopted or denied, only decisions of the U.S. Supreme Court about federal law or the Constitution are binding on the state courts, because only the Supreme Court reviews state court judgments directly.

That’s what Clarence Thomas was saying, for what it’s worth:

Even if this view is accepted, it doesn’t and shouldn’t apply to the Alabama probate judges under these circumstances. The logic of the state courts as independent interpreters of the Constitution only makes sense where an independent case is before them. Here, there’s no challenge to Alabama’s marriage law before the state probate courts.

Instead, the federal district court in ruling the state’s marriage law unconstitutional has effectively ordered the state’s officials to issue marriage licenses. The probate judges are simply functionaries of the state when it comes to issuing the licenses. They should therefore be bound by the federal district court’s order, which applies specifically to their function. Failure to obey would amount to a form of legal contempt.

That settles matters, but Feldman sees something else going on here:

The U.S. Supreme Court could have headed off this confrontation by granting a request for a stay of the district court’s order sought by the state of Alabama. Twice in the last year – most recently, six months ago – the court granted stays of similar orders. But in October, the court changed course, and stopped granting stays. This morning’s decision to deny a stay follows that trend. …

Thomas’s reasoning is a little bit convoluted, but it shows that the court could conceivably have granted the stay if it had wanted to avoid confrontation with Moore.

Indeed, the court may have been motivated to deny the stay at least in part by the desire to signal to Moore that it’s unhappy with his shenanigans. Admittedly, the court would probably have denied the stay anyway. But by directly confronting the Supreme Court’s authority, Moore may have guaranteed that Justice Anthony Kennedy would vote against any stay, because it would look like judicial weakness.

In short, Moore is a notorious asshole, so five of the nine Justices decided they’d do him no favors, and everyone knows where this is heading. Sahil Kapur at Talking Points Memo lays it out:

The dissent by Thomas, joined by Justice Antonin Scalia, accused the other justices of failing to show “the people of Alabama the respect they deserve” by letting the lower court ruling stand while the case is pending before the Supreme Court. He argued that the order reveals the Court’s intention to rule for same-sex marriage.

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote. “This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.”

“Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States,” he added.

Well, we had that Civil War, so those days are over:

“What struck me about today’s dissent was Justice Thomas’s recognition that these stay orders signal what is likely coming on the merits: a constitutional right to same sex marriage,” Rick Hasen, a law professor at UC Irvine, wrote. “The tone was one of resignation of what is coming and a lament about the loss of the power of the states.”

The others know that:

Chief Justice John Robert and Justice Samuel Alito did not formally dissent. Both of them voted against gay-rights advocates in 2013, and neither is seen as a good bet to overturn state bans on same-sex marriage this year. A likelier bet among the conservative members is Justice Anthony Kennedy, who has written the Court’s three key decisions in favor of gay rights since 1996. He is widely expected to rule in favor of same-sex marriage again.

“It’s going to be hard to count to five [Supreme Court] votes for upholding these laws” banning gay marriage, Paul Clement, the lawyer who unsuccessfully asked the justices to uphold the Defense of Marriage Act in 2013, said last fall.

Brian Fitzpatrick, a law professor at Vanderbilt University, said he agrees with Thomas’ view but argued that “the Court tipped its hand long ago” by letting other pro-gay-marriage rulings by lower courts stand.

“It seems obvious that every gay marriage that takes place makes it more difficult to rule against gay marriage in the end,” he said. “I can’t imagine the conservatives on the Court would have turned down these other cases and allowed all those marriages to take place over the last several months if they did not know that they were going to lose on the merits.”

This is a done deal:

“I guess Clarence Thomas knows what’s comin’,” said Adam Winkler, a law professor who supports marriage equality. “Don’t we all, at this point?”

There’s God law, if you read the Bible a certain way, but we make our own laws, for ourselves, by general agreement. We’re Americans. That’s how we roll, in spite of the South being charming, or alternatively terrifying. It depends on the day, and Doug Mataconis adds this:

Moore’s position here is as much nonsense as his position regarding the Ten Commandments monument that led to his dismissal from the bench more than ten years ago. …

At this point, there is no difference between what Roy Moore is advocating here and what George Wallace did when he stood before the doorway of the University of Alabama in an effort to prevent African-Americans from enrolling in the school notwithstanding a Federal Court order that this must happen. In both cases, we have a politician, and make no mistake about it, Roy Moore is acting far more like a politician than a jurist here, who is appealing to outright bigotry and openly defying a Federal Court Order. Ultimately, the Supremacy Clause tells us that the Federal Courts will win this dispute, but it’s rather obvious that Moore and others like him will exploit this matter as much as they can before it’s over. Meanwhile, though, at least some of Alabama’s gay and lesbian citizens are able to take advantage of the equality under the law they are entitled to. Let’s hope it isn’t too long before that expands to the rest of the state.

Yeah, well, Moore is the same guy who seemed to imply that the First Amendment only applied to Christians – before walking it back later. He has issues. The South has issues – but they are fascinating people down there. Just don’t watch that 1972 movie Deliverance – things sometimes don’t turn out well down that way, in spite of the great banjo music.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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1 Response to Getting a Rise Out of the South

  1. Rick says:

    Clarence Thomas is obviously no complete dummy, but he is still a constant source of ironies. Here’s from one of the commenters on that Talking Points Memo story, deliciously restating one of the obvious ones:

    I love the way Thomas stands up for states rights — which would have kept him from marrying his right-wing harridan of a wife if the Supremes of 1967 had believed as he does. The near-total lack of logic in his belief system, such as it is, is astonishing and hilarious at the same time.

    But I have two personal favorites found in this latest break from his usual silence. Here’s the first one:

    “This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.”

    You might assume that word “indecorous” is some legal jargon, commonly used by judges admonishing each other, but here’s what my dictionary has for “decorous”:

    dec-or-ous |ˈdekərəs; diˈkôrəs|
    in keeping with good taste and propriety; polite and restrained :
    dancing with decorous space between partners.

    That doesn’t sound like a legal objection to me, it sounds more like a word the old lady in charge of the cotillion would have used to describe your behavior as a kid when you forgot to put on your white gloves. As a grande dame of the privileged class, she would probably today have exactly the same opinion of same-sex marriage as Clarence Thomas does, although she’d probably not much like the idea of a black Justice of the Supreme Court either.

    But this one’s slightly more obscure:

    “Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States,” [Thomas] added.

    So when did “cavalier” become derogative, especially in the Old South, the forefathers of whom were the Cavaliers of England — the Royalist supporters of Charles I who, after he lost his head to the Puritan Roundheads, fled to Virginia, “similar to the great Puritan migration to Massachusetts, caused by the triumph of the opposite party twenty years before”. But if there’s anything the Cavaliers of the Old South were famous for, it was gallantry and “decorous” behavior, so Justice Thomas was, at the very least, guilty of mixing metaphors.

    But I’m still confused as to where this Alabama business can go from here. Can they all just continue on the way things are today, with some counties performing the marriages and others not, ad infinitum?

    First of all, it seems pretty clear that Roy Moore does not have the law on his side, as explained in the Wikipedia article on the Supremacy Clause of the Constitution:

    The Supremacy Clause is the provision in Article Six, Clause 2 of the United States Constitution that establishes the United States Constitution, federal statutes, and treaties as “the supreme law of the land.” It provides that these are the highest form of law in the United States legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either a state constitution or state law of any state. …

    Nullification is the legal theory that states have the right to nullify, or invalidate, federal laws which they view as being unconstitutional; or federal laws that they view as having exceeded Congresses’ constitutionally authorized powers. The Supreme Court has rejected nullification, finding that under Article III of the Constitution, the power to declare federal laws unconstitutional has been delegated to the federal courts and that states do not have the authority to nullify federal law.

    But what could theoretically happen to a state’s Chief Justice, like Roy Moore, if he just refuses to obey an order of a federal court? In his “Segregation forever!” case, George Wallace was persuaded by the threat that JFK’s National Guard would just walk over him as he stood in some schoolhouse door, and eventually acceded to a federal court in Birmingham. But what would have happened to him, legally, if he hadn’t given in?

    In the case of Roy Moore, there’s always the possibility that the Alabama Court of the Judiciary can remove him from his post, as it did in 2003, but only if they feel like it. Maybe they don’t. So what then?

    The answer is, I don’t know. The Constitution doesn’t specify. As far as I can tell, it’s entirely possible the founders didn’t anticipate some asshole state official taking the law into his own hands, and then just not letting go.


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