Alabama same-sex marriage fight echoes states’ rights battles

Former Alabama Gov. George Wallace vowed "segregation forever" and stood in an Alabama school house door in 1963 to keep blacks from enrolling at the University of Alabama in Tuscaloosa, Ala. Calvin Hanna, AP (File)

Olanda Smith, left, and Dinah McCaryer show off their certificate after being the first to be married at the Jefferson county courthouse, Monday, Feb. 9, 2015, in Birmingham, Ala. Hal Yeager, AP

Olanda Smith, left, and Dinah McCaryer show off their certificate after being the first to be married at the Jefferson county courthouse, Monday, Feb. 9, 2015, in Birmingham, Ala.

MONTGOMERY, Ala. — Alabama Chief Justice Roy Moore’s judicial building office overlooks Montgomery’s Dexter Avenue, a history-soaked thoroughfare topped by the Alabama Capitol where Jefferson Davis was inaugurated president of the Confederacy and where the Rev. Martin Luther King, Jr. ended the 1965 march for voting rights.

As gay and lesbian couples left a nearby courthouse clutching marriage licenses last week, Moore, an outspoken critic of same-sex marriage, was fighting to stop the weddings using a states’ rights argument that conjured up those historical ghosts of slavery, the Civil War and the battle against desegregation.

There has been resistance in other states to the tide of rulings allowing same-sex marriage. Some Florida clerks’ offices scrapped all marriage ceremonies rather than perform same-sex unions. In South Carolina and Georgia, legislation is being developed to let individual employees opt out of issuing marriage licenses to gay couples out of sincere religious belief.

No state, however, went as far as Alabama, where the 68-year-old Moore instructed the state’s probate judges not to issue marriage licenses to gay couples.

“It’s my duty to speak up when I see the jurisdiction of our courts being intruded by unlawful federal authority,” Moore said.

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Moore objected to a Jan. 23 ruling by U.S. District Judge Callie Granade in Mobile that Alabama’s gay marriage ban violates the 14th Amendment’s guarantee of equal protection and due process. After the Supreme Court on Feb. 9 refused to stay the decision, Alabama became the 37th state – plus the District of Columbia – where same-sex couple can legally wed.

In his dissent when the U.S. Supreme Court refused to block that order, Justice Clarence Thomas pointedly raised the states’ rights flag, complaining that the court’s decision was made “without any regard for the people who approved these laws in popular referendums or elected the representatives who voted for them.”

The decision, he added, “represents yet another example of this court’s increasingly cavalier attitude toward the states.”

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