There is hardly a political question in the United States which does not sooner or later turn into a judicial one. — Alexis de Tocqueville


Despite gains in the movement for marriage equality in the United States, such as the repeal of the Defense of Marriage Act (DOMA) and Proposition 8 by the Supreme Court of the United States in 2013 and the repeal of Amendment 1 in North Carolina by a U.S. District Court in 2014, resistance rooted in cynical appeals to populism and the tyranny of the majority rears its head in Alabama. This is manifest in the looming showdown between Judge Roy Moore of the Alabama Supreme Court and the Supreme Court of the United States (SCOTUS) following the repeal of the Alabama Sanctity of Marriage Amendment, in a ruling handed down by Justice Callie V. Granade  of the United States District Court for the Southern District of Alabama on January 23, 2015. This is not unlike the showdown that took place between Governor George C. Wallace and President John F. Kennedy in 1963 when Governor Wallace defied the SCOTUS ruling in Brown v. Board of Education, handed down in 1954 that declared segregation unconstitutional. In both cases, support for segregation and for a ban on same sex marriage was overwhelming and Wallace and Moore insisted their respective stands on the issues was justified in that they represented the opinion of the majority of voters in Alabama.

George Wallace was a consummate politician and populist who prevailed in his tumultuous political career. His start in politics was in the Alabama State Legislature where he served two terms following his election in 1947. In 1953 he was elected judge in the Third Judicial Circuit Court of Alabama and held the post until 1959. He was given the nickname the “fighting judge” (he won two Golden Gloves titles in high school) and was noted on his tough approach as a judge. He defied the U.S. Commission on Civil Rights during its investigation of accusations that the voting rights of black citizens were denied in some counties. He refused to hand over voting records for the affected counties. He was elected Governor of Alabama in 1962 in a landslide taking 96.27% of the popular vote. (Our Campaigns) He campaigned as a populist, promising white voters he would uphold segregation in Alabama. In a comment to a reporter in how he won over white voters who favoured segregation in Alabama, he stated: “I started off talking about schools and highways and prisons and taxes—and I couldn’t make them listen […] Then I began talking about niggers—and they stomped the floor.” (as cited in Alabama Heritage)

As Governor of Alabama in 1963 he stood his ground, barring two black students, Vivian Malone and James Hood, from enrolling at the University of Alabama until President John F. Kennedy federalized the Alabama National Guard and deployed it to clear the way for their enrollment. There were further confrontations over the integration of schools in Alabama at Tuskegee, Birmingham, Huntsville and Mobile where he was forced to back down. Wallace continued his career in politics making failed bids for the presidency in 1968, 1972 and 1976. He survived an assassination attempt in 1972, but suffered paralysis below the waist and  confined to a wheelchair for the rest of his life. He remained popular to voters in Alabama and won re-election as Governor in 1970, 1974 and 1982. By the 1980s he renounced segregationist policies and enjoyed support from many black voters. He retired from politics in 1987 and passed away in 1998.

Roy Moore, like George Wallace before him, is a populist. Moore is a religious man, a Baptist, and his constituency is conservative Christians, notably the Southern Baptist Convention. He started his career in politics as the Circuit Judge of the Sixteenth Alabama Circuit, a post he held from 1992-2000. He was elected Chief Justice of the Alabama Supreme Court in 2000 and took office in 2001. His opposition to homosexuality on religious grounds is a matter of public record. In 2002 he handed down a ruling in a custody dispute between a lesbian mother and her ex-husband writing in part the following:

Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature’s God upon which this Nation and our laws are predicated. Such conduct violates both the criminal and civil laws of this State and is destructive to a basic building block of society—the family. The law of Alabama is not only clear in its condemning such conduct, but the courts of this State have consistently held that exposing a child to such behavior has a destructive and seriously detrimental effect on the children. It is an inherent evil against which children must be protected. (as cited in Christianity Today)

Moore was removed from office in 2003 in a dispute over the display of the Ten Commandments in the Alabama Judicial Building, but handily won re-election in 2012.

Meanwhile, in 2006 a referendum was held in Alabama for Constitutional Amendment 774, the Alabama Sanctity of Marriage Amendment, that was intended to define marriage as a “unique relationship between a man and a woman” and prohibit the state from issuing marriage licenses to same-sex couples. The wording of the ballot measure was as follows:

Proposing an amendment to the Constitution of Alabama of 1901, to provide that no marriage licenses shall be issued in Alabama to parties of the same sex and that the state shall not recognize a marriage of parties of the same sex that occurred as a result of the law of any other jurisdiction. (Proposed by Act 2005-35)

The amendment passed with 81.18% of those who cast their ballots voting in favour and remained in effect until its repeal in January 2015 by Justice Callie V. Granade  of the United States District Court for the Southern District of Alabama as noted above. (Ballotpedia) In response, Moore wrote to Governor Robert Bentley, speaking on behalf of his religious constituency, on January 27 insisting:

We must act to oppose such tyranny! Our State Constitution and our morality are under attack by a federal court decision that has no basis in the Constitution of the United States. Nothing in the United States Constitution grants to the federal government the authority to desecrate the institution of marriage. (as cited in Newsmax)

Moreover, on February 3 Moore advised probate court judges in Alabama to defy the ruling noting “nothing in the orders of Judge Granade requires Alabama’s Probate judges to issue marriage licenses that are illegal in Alabama.” (as cited in Newsmax) Petitions to the U.S. Court of Appeals and SCOTUS by the state to block enforcement of Justice Granade’s order until the issue is ruled on by SCOTUS in June were denied. As was the case for segregation, SCOTUS will have the last word on the constitutionality of same sex marriage for Alabama and the rest of the United States. It is expected the highest court will declare same sex marriage is a constitutional right. If this comes to pass, just as George Wallace was forced to accept the SCOTUS ruling that declared segregation unconstitutional, Moore will have to accept that the Alabama Sanctity of Marriage Amendment is no longer in force. Once again, constitutional guarantees of equality will trump the tyranny of the majority. It will be a bitter pill to swallow for Moore and the opinion of the majority he insists he represents, but like Wallace before him, you can be certain he will retain the support of his constituency and continue his career in politics.

Posted by Geoffrey

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