These are heady days for advocates of marriage equality. The Supreme Court is due to hear arguments this spring in a group of cases that could settle the question of a national Constitutional right to same-sex marriage, and this week, a decision not to enter a stay on the enforcement of a federal judge's ruling invalidating Alabama's ban on gay marriage is being widely seen by observers — including Justices Clarence Thomas and Antonin Scalia — as telegraphing the court's likely ruling. In that light, the ensuing conflict in Alabama, where the state's chief judge has attempted to forbid local judges from granting marriage licenses to same-sex couples, has the air of a last gasp against the inevitable.
Indeed, with all the attention now being paid to the anniversary of the civil rights march on Selma, it's tempting to see a great parallel between the movement a generation ago to seek equal rights for African Americans and today's movement to seek equal rights for gays. Just as some Alabama politicians tried to stand in the way of federal court orders forcing desegregation — literally, in the case of then-Gov. George Wallace and the University of Alabama — the state's Supreme Court Chief Justice Roy Moore, whose position is elected, has sought to stop the issuance of marriage licenses to same-sex couples on the grounds that local judges were bound by the state constitution, not the order of a federal judge.
But while there are similarities in terms of the debate over states' rights, there are also real differences in the way this conflict is playing out. Support for same-sex marriage is much lower in Alabama than in the nation as a whole, but the decision by some probate judges to defy Mr. Moore's order has not led to widespread protests, much less violence. And the state's governor and attorney general are effectively staying out of the matter. Gov. Robert Brantley issued a statement making clear that he does not support same-sex marriage and agrees with Justices Thomas and Scalia that the Supreme Court's refusal to issue a stay "represents yet another example of the court's cavalier attitude toward the states." But he said he would take no action against probate judges for either issuing or refusing to issue licenses to same-sex couples. Alabama Attorney General Luther Strange refused to give the probate judges any guidance at all. Some probate judges have decided to stop performing marriages altogether while the situation sorts itself out.
Meanwhile, gay couples who have been shut out — by most counts, the majority of the state's counties are not yet issuing licenses to same-sex couples — have either been driving to jurisdictions where they can get married or are working through the legal process to see federal district Judge Callie V.S. Granade's order enforced. Whatever legal chaos may be playing out seems not be translating to chaos on the streets.
And that may be as good a reason as any for the Supreme Court's refusal in this and other cases to stay lower court rulings finding a Constitutional right to gay marriage. There is simply no evidence that allowing same-sex marriages is causing irreparable harm to anyone — and indeed, quite the opposite as the stream of joyous wedding photos out of Alabama attests. Justice Thomas argues that invalidating a state law per se causes irreparable injury to the people of that state, but the real injury is the one done to the plaintiffs in this case and those similarly situated.
Cari D. Searcy and her wife, Kim McKeand, were legally married in California in 2008, and they live in Mobile where they are raising a son, Khaya. Ms. McKeand is Khaya's biological mother, but Alabama courts had refused to allow Ms. Searcy to adopt him because the two women were not married in the eyes of that state. The issue is not an abstract one; Khaya was born with a heart condition, and when he was in the hospital for surgery, Ms. Searcy was not allowed to make medical decisions — or even care for him — because she was not a legal relative.
At least five of the nine justices on the Supreme Court declined Alabama's request to prevent the legal recognition of families like that one until the court makes its ruling on marriage equality this summer, and it is hard to imagine that they would be so cold hearted as to allow such families the full recognition they want, need and deserve only to pull it away five or six months later. As wary as one must be of predicting how the court will rule before arguments are even made, we cannot help but to hope that Justice Thomas' prediction comes true.