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Alabama same-sex marriage fight echoes states’ rights battles

Former Alabama Gov. George Wallace vowed
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)

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Moore, who is head of the Alabama court system, threw the Granade ruling into disarray when he urged the probate judges in a letter to stand against “judicial tyranny” and claims Granade had no authority to “redefine marriage.”

Alabama probate judges were not defendants in the case, Moore argues, and thus are not subject to a direct court order. He also said they are part of a parallel state court system that doesn’t have to submit to Granade’s views until the U.S. Supreme Court says otherwise.

“She has no control over the state of Alabama to force all probate judges to do anything,” Moore said. “This is a case of dual sovereignty of federal and state authorities. The United States Supreme Court is very clear in recognizing that federal courts do not bind state courts.”

Although he bristles at the link, Moore’s action drew inevitable parallels with former Gov. George Wallace’s 1963 “stand in the schoolhouse door” aimed at preventing federal court mandated desegregation at the University of Alabama.

Wallace was attempting to fight integration nine years after education segregation was ruled illegal by the U.S. Supreme Court. Moore said such a final decision hasn’t happened yet on the subject of same-sex marriage.

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“The rhetoric and demagoguery of states’ rights and federal judges, you can’t help but make that comparison,” said Doug Jones, a former U.S. attorney who prosecuted the two Ku Klux Klansmen who bombed Birmingham’s 16th Street Baptist Church in 1963, killing four black girls in a crime that helped galvanize the civil rights movement.

Many legal experts think Moore and other states’ rights advocates are on shaky ground. Ruthann Robson, a law professor at the City University of New York, said Granade’s decision should be considered the law of the state unless overruled by a higher court or contradicted by a state court.

“If what Moore says is true, then no federal court could ever hold a state law, regulation or policy unconstitutional. And the 14th Amendment, then, would be essentially meaningless,” Robson said in an email.

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