This morning, a majority of the justices of the U.S. Supreme Court refused to block same-sex marriages in Alabama pending the high court’s decision on the constitutionality of similar marriage bans in other states — making Alabama the 37th state in which such marriages are permitted.
The court is scheduled to hear cases out of Michigan, Ohio, Tennessee and Kentucky on the constitutionality of same-sex marriage bans in April, with a ruling expected in June.
Allowing yet another state to move ahead with gay marriage led many to speculate that a majority on the nation’s highest court were moving towards acceptance of the argument that state bans are in fact unconstitutional.
Fueling that speculation was a dissent by Justice Clarence Thomas, joined in by Justice Antonin Scalia, chastising his colleagues for not staying Alabama marriages.
This 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 [the court’s 2013 decision striking down part of the federal Defense of Marriage Act].
This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our . . . responsibilities. And, it is indecorous for this Court to pretend that it is.
A federal judge had already ruled in January that Alabama’s ban was unconstitutional, but stayed the ruling until today in order to give the state time to appeal. State Attorney General Luther Strange then headed straight to the U.S. Supreme Court seeking that relief.
With that deadline and the possibility of federally-sanctioned same-sex marriages looming, Alabama Chief Justice Roy S. Moore issued an order last night prohibiting state probate judges from issuing marriage licenses to such couples.
(This was not the first time Moore defiantly tangled with the federal courts, as the New York Times noted earlier today. Readers may remember Moore’s refusal in the early 2000s to obey a federal judge’s order requiring the removal of a Ten Commandments monument from a Montgomery building — a move which led to his removal from the Chief Justice post. He became Chief Justice again in 2013.)
But once the high court refused to issue a stay order, probate judges across the state defied Moore’s order and began marrying gay couples.
As Robert Barnes at the Washington Post correctly points out, the dissent by two of the justices does not necessarily mean that the remaining seven all voted in favor of denying a stay. Rather, it means only that Thomas and Scalia chose to give their reasons for voting otherwise.
Some justices may have thought Alabama should receive a stay, but did not join Thomas’s dissent. All that is clear from Monday’s action is that a majority of the nine justices turned down the request, and only Thomas and Scalia gave reasons for their actions.