Feb
12

Alabama Secedes from Union -- Again

If you are looking for a compelling reason not to elect judges, look no further than the State of Alabama. State Supreme Court Chief Justice Roy S. Moore openly thumbs his nose at the federal courts. He was ousted from office a decade ago after defying a federal court order to remove a monument to the Ten Commandments from a Montgomery building.

The good people of Alabama returned him to office.

This week, he directed the state’s judges to refuse to give marriage licenses to gay and lesbian couples.

He’s a salty old nut, to be sure, but he’s not much of a jurist. 

Last month, United States District Court Judge Callie V.S. Granade declared an Alabama law banning gay marriages unconstitutional as a matter of federal law. Alabama asked the United States Supreme Court to intervene. That court refused to do so.

So Chief Justice Billy Bob took matters into his own hands by ordering judges in the Cotton State not to issue licenses to gay couples.

Rarely is the pathology of federalism on such vivid display.

Each breath you take in this great land of ours is drawn on the territory of two sovereigns — the state and federal governments. In legal terms, both have jurisdiction over you. Lawyers call this concurrent jurisdiction.

That’s not to say that both governments duplicate one another’s efforts in each and every area the law touches. Traditionally, the states have what is known as the police power, the right and power to pass laws affecting the health, education and welfare of individuals within their territory. The federal government is, at least in theory, a government of limited powers.

Examples of the police power include laws governing marriage and the relations between parents and children. Federal power is supposed to be tethered to some explicit text in the federal constitution. Constitutional scholars call the federal government one of enumerated powers — in other words, the feds must justify any assertion of jurisdiction by reference to some constitutional grant of power.

You can fill many shelves in a law library with the now centuries old debate about the relationship between state and federal power. But no lawyer of can pass the bar examination of any state without some nominal comprehension of the federal constitution’s supremacy clause.

Tucked away in Article six, clause two of the federal Constitution, the clause makes the federal Constitution, statutes and treaties the “supreme law of the land.” In other words, the federal government wins any tug of war with the states. It’s been that way for quite some time, and was settled for a good long time at Appomattox, when General Robert E. Lee surrendered to the Union Army.

Chief Justice Billy Bob’s directive to Alabama judges to ignore a federal court order is akin to open revolt. He’s daring the federal government to do something about it. It reminds me — almost — of former Gov. George Wallace’s defiant refusal to obey a federal court order to let African-American students attend the University of Alabama at Tuscaloosa in 1963.

Wallace lost that fight, just as Chief Justice Billy Bob will lose this one.

Thirty-seven states now permit same-sex marriage. The United States Supreme Court will issue a ruling before the Fourth of July no doubt declaring that same-sex marriage is protected under the federal constitution. Alabama will be dragged, once again, kicking and screaming, into a world intolerant of its prejudices.

The simple fact is that there is no reason other than tradition to oppose same-sex marriage. The right is a new arrival on the world’s stage.

But who should direct change? Should it be the federal government? Or should it be the states? Tradition favors the reliance on the states to police the health and welfare of its citizens.

Traditions can and do change. Consider the right to abort a pregnancy, another recently recognized right. This right, too, falls within the traditional domain of the states police powers. It took a significant teasing of the federal constitution’s text to “find” this right in federal law. Anti-abortion activists still rage against the law, and claim that an “activist” judiciary created the federal right to abort out of whole cloth.

I suspect opponents of same-sex marriage and the right to abort will find succor in one another’s rage. How does a federal government of enumerated powers morph, after 225 years, into something unrecognizable to our predecessors?

Some lawyers say of a newly recognized right that it was always present, just unrecognized — the right to abort was always implicit in the text and structure of the federal constitution. That’s special pleading, and silliness of high order.

The constitution is a political document, and the fight over its meaning is a test of wills, a contest of cultural visions. Chief Justice Billy Bob in Alabama is right to feel threatened, discomfited, even outraged over what the constitution now warrants.

Candidly, we should all be a little unnerved that the secular scripture defining what we can and cannot do is so malleable. Rights secure today are eroded in a flash — think of the many exceptions to the Fourth Amendment’s prohibition on unreasonable searches and seizures. New rights arise almost as if by magic — who would have imagined a federal right to same-sex marriage a few short decades ago?

The South scares me. There’s a superficial charm and courtly manner on display by day. But come nightfall, I still hear the master’s call to his slave. I never visit the region without a forbidding sense of menace hovering in the air.

So Alabama’s chief justice wants, once again, to opt out of the union. There’s no surprise there. I watch him make a lawyerly ass of himself and wish all at once we engaged, as did the ancient Greeks, in the practice of ostracism. Send Billy Bob packing, I say.

At the very least, remove him as chief justice. He’s a disgrace to the bar, a laughing stock, a defiant old fool in love with a world that has vanished. That he’s a folk hero in Alabama is a sign of the turbulence of our times.

 

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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