Barring an unexpected, last-minute injunction from the U.S. Supreme Court, numerous probate judges down here in Alabama will reluctantly start issuing marriage licenses to same-sex couples on Monday morning. In theory, at least, they ought not do so.
They should not do so because, first, they are under no legally compelling order to do so, while they are sworn to uphold a state constitution that forbids them from it.
They should not do so because they have been advised by the state’s chief judicial officer, Chief Justice Roy Moore, that their obligation is to the state constitution rather than to a federal district judge.
They should not do so because the most rational analysis of two recent Supreme Court decisions should lead them to conclude that the federal district judge is wrong, and that no constitutional right exists to force the state to recognize same-sex nuptials.
Yet, all that said, there are two reasons for refusing to issue such licenses, reasons that are not valid and that these probate judges should not cite. I have seen both reasons offered down here in recent days, but both are misguided. The first is to assert that state courts are not subject, for U.S. constitutional interpretation, to the duly determined rulings of the federal judiciary. The second is to assert that their own consciences or beliefs preclude them from obeisance to their otherwise sworn duty to faithfully execute the laws.
Okay, that’s a lot to grasp. Let’s take the last two items — assertions of state supremacy or private-faith supremacy — first.
When someone swears an oath to perform a public duty according to the duly determined rules and proceedings of a legitimately republican government, then that someone must perform that duty whether or not he agrees with it — unless he is willing to resign his post. Of course he has a right to refuse to act against his faith-based beliefs, but (assuming that the law and its procedural obligations clearly contradict his beliefs) he may not do so while keeping his public position. He has a right to his beliefs, but no right to a particular public job.
Likewise, it is beyond question that on controversies arising about national constitutional questions, the U.S. Constitution is the supreme law of the land; and it is also beyond question that the ultimate judicial arbiters of the Constitution are federal judges, not state ones. (Actually, the ultimate arbiter is the people themselves, through their amendment powers or, rarely, by stripping federal courts of jurisdiction. But in any particular legal case, federal courts rule on national constitutional questions.) Jefferson’s over-broad Kentucky Resolutions in the 1790s notwithstanding, the U.S. Constitution does not allow state “nullification.”
So we see that not every reason offered for resistance is reasonable. Still, as noted above, there are indeed other circumstances in which a state court official may act contrary to an order from a federal court. Let’s take the first two items from our opening paragraphs, the ones about the state constitution. The items — about a probate judge’s obligations to his state constitution and to his chief judicial officer — work in tandem.
A state court official is sworn to uphold his state’s constitution. If the state’s foundational charter clearly and unambiguously provides for him either an obligation or a restriction, he must, in his professional role, obey it unless and only unless the provision in question is pronounced, by proper judicial authorities, to violate the U.S. Constitution, to which all state charters are subservient if they conflict.
Now here’s the important thing, and it’s one I checked with recognized constitutional experts: The constitutional pronouncements of a federal district judge usually are binding only on the parties to the suit at hand or on agents thereof. A district judge is a trial judge only. She is a finder of fact and an applier of law. But the law she applies is not more broadly applicable, or at least not mandatory, except on the parties before her.
So, with the possible exception of a case purporting to be some sort of class action in the name of all others within the court’s jurisdiction who are subject to the law being challenged, then a district judge’s ruling does not bind officials who merely are situated similarly to the ones before her.
It is a federal appeals court, and an appeals court only — not a district court — that can issue decisions on constitutional questions that are binding (unless overruled by the U.S. Supreme Court) on all jurisdictions and officials within the bounds of its circuit. The federal appeals court is no longer (usually) a finder of fact but, by definition, an interpreter of, and decider of, law. (Even then, a federal appellate court may override state courts only on issues pertaining to federal law, not on issues solely governed by the state’s own constitution.)
Because a district court has no such authority, a disputed state constitutional provision should remain in effect aside from its applicability to the parties to the case — unless and until a federal appeals court affirms the federal district judge’s ruling.
(This is why, as I am informed, it is possible for two district judges in the exact same district to apply a disputed constitutional issue in diametrically opposite ways, on the exact same day, and to have both decisions be enforceable on the parties respectively before them, until an appeals court overrules one or the other.)
Granted, all of this can become a little confusing to probate judges, who are not necessarily expected to be experts in complicated, constitutional-procedural niceties. That’s where the state’s chief judicial officer, the chief justice, comes in. As Whelan has noted, a chief justice is also the “administrative head of the state’s judicial system.” As such, his procedural and interpretive orders are generally applicable to judges and other officials within that system. So, if a probate judge is torn between two equally (or near-equally) plausible rulings or judicial edicts, she should assume for purposes of state constitutional construction that her own state’s chief justice is the preeminent authority.
To put it in sports vernacular, this is roughly akin to baseball’s rule that “the tie goes to the runner,” with the chief justice in the runner’s role.
Now, it should be understood that this tie-to-the-chief assumption only goes so far. A lower-court state judge must follow a federal appellate court’s ruling on the merits of whether a state constitutional provision violates the U.S. Constitution. But there seems no good reason that a probate judge in, say, Huntsville, Ala., in the northwest corner of the state, should feel bound by most orders by a federal district judge in Mobile, the state’s southwesternmost county — especially if advised not to do so by her own chief justice.
Granted, there’s a sort of sliding scale at work here. But generally speaking, a state-court judge owes more fealty to his state’s constitution, especially in furtherance of his chief justice’s orders pertaining to it, than he does to a federal district judge in a suit to which he is neither party nor a party’s agent.
All of which explains why there is likely to be chaos in Alabama’s probate courts for quite a while, as some judges start issuing licenses to same-sex couples while others don’t, and as even more lawsuits are filed both ways.
The shame of it all is that the chaos will grow from a ruling, both erroneous and premature, from a headstrong federal district judge. The ruling was premature because the judge should have waited for the Supreme Court to decide the issue (of whether same-sex marriage is a constitutional right), an issue that is already on the high court’s docket. Once the Supremes have agreed to adjudicate an issue, humility and due deference should lead a lower-court judge to suspend her own decision on the constitutional question, absent irreparable harm to one party in the meantime.
It will take a full column (forthcoming in this space) to more fully explore why Judge Ginny Granade’s ruling was erroneous. For now, suffice it to note three things: First, a state constitutional provision is, by Supreme Court precedent and by a wise understanding of our federated system, assumed to be immune from “strict scrutiny” unless it is alleged to violate a “right” that is “objectively, deeply rooted in this nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Obviously, a marital practice never given state sanction for the first two centuries of these United States is hardly “objectively, deeply rooted in this nation’s history and tradition.”
Second, Judge Granade (and other judges) citing the 2013 U.S. v. Windsor decision to force states to adopt same-sex marriages seem to ignore ample, explicit passages in that decision to the effect that its recognition of same-sex marriages “is confined to those lawful marriages” already recognized by states — states that, the high court insisted, retain “foundational” authority over the subject of “domestic relations.”
Finally, it is worth noting that in the subsequent case of Schuette v. BAMN (on race relations, not marriage), the same Justice Anthony Kennedy who wrote Windsor expended great energy on paeans to the need for courts to avoid forcing answers to emotionally disputed issues rather than allowing “rational, civic discourse in order to determine how best to form a consensus.”
In Alabama, Judge Granade has short-circuited the process of rational, civic discourse — discourse that allows the people themselves to take note of and apply (or reject) changing standards and values, and that allows the people to apply justice, compassion, and a sense of human dignity in ways they think best for the commonweal. State officials, for all the reasons described above, have at least the prerogative, and maybe the duty, to stand for republican (small r) discourse, against attempted judicial fiat.
— Quin Hillyer is a contributing editor of National Review. Follow him on Twitter: @QuinHillyer.