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Standing in the Courthouse Door

02/09/2015 08:21 pm ET | Updated Apr 11, 2015
Matthew Cavanaugh via Getty Images

Roy Moore, the chief justice of Alabama's state supreme court, is making a stand in the courthouse door. This is not literally happening, the way it did back in 1963 when Alabama Governor George Wallace made a similar stand in the schoolhouse door. But the motivation is similar; it's a classic standoff between states' rights and federal legal supremacy over state law. In both Moore's and Wallace's cases, high Alabama officials are defying federal civil-rights legal orders -- and the United States Supreme Court -- to preserve the state's ability to legally discriminate against a segment of its population.

Wallace was defying both the 1954 Supreme Court decision in Brown v. Board of Education of Topeka, Kansas and an order by a federal judge that three black students were to be admitted to the state-run University of Alabama. In his inaugural speech earlier in 1963, Wallace had infamously proclaimed, "I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation now, segregation tomorrow, segregation forever," so it's pretty easy to see where his heart was when he stood in the door of a university auditorium in an attempt to physically block the three African-American students the judge's order covered. Federal marshals, a deputy attorney general, and the Alabama National Guard were required to move Wallace aside so the students could successfully register. Alabama schools were finally integrated, a full nine years after the Brown decision.

Moore is likewise decrying federal "tyranny" by defying a federal judge's order that Alabama begin marrying gay couples today. The U.S. Supreme Court refused to issue a stay of the judge's order or to otherwise block or delay marriage equality from coming to Alabama. The state is now the 37th to allow gay marriages to happen. The Supreme Court, later this year, will hear a final case in this legal drama, where everyone fully expects them to bring marriage equality to every state, no matter what state laws remain on their books on the subject. In fact, the court's refusal to stay the Alabama decision is a strong indicator of how they're preparing to rule on the issue in June.

Before the marriages were to begin this morning, Moore wrote a note to all the state officials who issue marriage licenses. In it, he states that any of these officials who follow the federal judge's ruling and begin issuing licenses to same-sex couples could be disciplined by the state government. Since Moore doesn't issue these licenses himself, he is directing others to make their own "stands in the courthouse door." As of this writing, in at least eight Alabama counties, officials are refusing to marry gay couples. (Most are reportedly just refusing to issue any marriage licenses, which dodges the issue somewhat.)

It remains to be seen how the federal judiciary will react. (Again, that's "as of this writing." There may be recent developments in this fast-moving showdown.) The federal judge who issued the ruling could begin holding state officials in contempt of court. Roy Moore himself seems to be courting a direct confrontation, and the federal judge may well grant him his wish. Moore is no stranger to federal/state confrontation, as he was previously removed from office as the state's chief justice in 2003, when he refused to remove a stone monument to the Ten Commandments from the Alabama Judicial Building. Moore was then subsequently reelected to his post, showing he's at least in tune with most of Alabama's voters (who voted to ban gay marriage by a whopping 81 percent, it bears mentioning).

The argument over the division between states' rights and federal law is as old as our country. The U.S. Constitution was created because the Articles of Confederation was so heavily slanted towards states' rights, in fact. Many, however, thought the new Constitution went too far in the other direction, and we've been fighting about the issue ever since in various ways (the Civil War being merely the most prominent example). In the past 75 years (at least), the fiercest of these battles have been waged over civil rights.

This brings up a much wider question, though: Where do one person's civil rights begin and another's end? The classic answer to this question is: "Your right to swing your fist ends at my nose." But that's a little simplistic, because "my nose" can be rather hard to define in the abstract.

It seems almost self-evident these days that marriage equality should become the law of the land everywhere, at least to its proponents. But it wasn't that long ago that this wasn't true. It really wasn't that long ago, historically, that interracial marriages were still banned in many states. That one took a Supreme Court case to resolve, and it is now almost impossible to picture a county clerk refusing to issue a marriage license to an interracial couple "for reasons of conscience."

This is precisely what Moore is arguing for, however. It's not just in Alabama, either. Other state governments have toyed with the idea that individual marriage officials should be able to "opt out" of performing gay weddings because of the religious beliefs of the official. This, however, is unconstitutional on the face of it, if the Supreme Court soon rules that marriage is a basic civil right. Officials of the state are not allowed to discriminate. Period.

But while that one's pretty easy to parse, the whole nose/fist dividing line is not as strong in other cases. Pharmacists in many states are legally allowed to refuse to fill certain prescriptions they do not morally agree with -- all of them having to do with women's sexual health. Pharmacists can refuse to sell birth-control pills, morning-after pills, and abortion pills. If you are a woman who lives in a small town in the West and your local pharmacist (the only one in town) refuses to fill a legal prescription, you may have to drive hundreds of miles to find another pharmacist so you can get what you need. Pharmacists, however, are licensed by the state. So why are they allowed to discriminate based solely on their own religious beliefs? The Hobby Lobby case moved this argument into a different arena, when the court ruled that private corporations can indeed have their own "religious conscience" when it comes to birth control and women's health. Such companies are allowed to discriminate against their women workers, and those workers' right to health insurance is not the same as that of other women workers in America.

The biggest moral/legal grey zones exist around abortion, of course. Doctors are also licensed by the state. Many states have been making it ridiculously hard for doctors who do perform abortions to even operate. This has all gathered steam in the past few years, in fact. But there are issues on the other side of the coin as well: Very few people (for instance) would insist that all doctors -- or even all obstetricians or gynecologists, specifically -- be forced by the state to perform abortions. But, as seen in the case of pharmacists, this can put incredible burdens on women seeking health care. The question of abortion gets even more complex: Should a state require all doctors who get certified to have learned how to perform an abortion safely? Should it be a mandatory part of their training? Even if you limit this one to just OB/GYNs, it seems like a reasonable requirement on practical grounds. (If an emergency abortion were needed, it would be nice to know that any doctor present could perform the operation to save the mother's life, for instance.) But the ethics of such a requirement are a bit more nebulous.

The recent outbreak of measles in California has prompted a national conversation about vaccinating children. The obvious divide is around the question of whether the government should require any child attending school to be fully vaccinated (or provide a valid medical excuse), but the question becomes more difficult when it comes to the doctors currently being interviewed on the airwaves, both pro and con. Should anti-vaccine doctors be brought up before their state's medical board and stripped of their license? Conversely, should doctors be allowed to refuse care to children whose parents don't vaccinate them, as several pro-vaccination doctors are now doing? Where does the conscience of the doctor come into conflict with established medical standards?

An even larger battle looms, getting back to the subject of marriage equality. It's one thing to discuss the legal requirements for a state official charged with marrying people. It's quite another to allow businesses to discriminate along the same lines. The opening skirmishes in this fight were over professionals who provide wedding-related services, such as photographers and commercial bakers of wedding cakes. Several cases are winding their way through the court system now. Again, the core issue is where the customer's rights end and the business' rights begin. Should all businesses be banned from discriminating and be forced to offer the same services to gay couples as they offer to straight couples? That seems pretty obvious to many; however, one interesting twist in this fight has already happened. A customer tried to buy a cake from a bakery with an anti-gay message written on top of it. The baker refused to write the message, although extra icing was offered so that the person could write their own message. Where does this fall in the argument? Should a business be forced to offer a racist or bigoted cake? How is this different from a devoutly religious baker refusing to offer a wedding cake to a gay couple? All these questions are going to grow in prominence in the next few years, as state governments are already considering creating "conscience clause" legislation to protect businesses' right to discriminate against whomever they wish. This is going to be the last battlefield for the marriage-equality movement, and it will be somewhat of a desperation holding action by gay-marriage opponents, a last-ditch effort to stem the tide of gay marriage after the Supreme Court rules on it.

Sometimes it is easy to see which way the moral arc of the universe is next going to bend. Roy Moore is politically grandstanding on marriage equality in Alabama in the same fashion as George Wallace over 50 years ago. Looking from the outside in, it's pretty easy to see that it's a losing battle. No matter how it happens or how long the standoff takes to resolve, gay couples everywhere in Alabama are soon going to be able to exercise their rights equally. Wallace's stand in the schoolhouse door remains a historical footnote as one of the biggest examples of the defense of segregation during the civil-rights era. Moore's may similarly go down in history as the most prominent defiance of the federal government on marriage equality.

But winning this fight in Alabama isn't going to be the end of the road for the marriage-equality movement. Even if the Supreme Court rules in June that gay marriage is the law of the land everywhere, it will likely not be the final battle in this fight for equal rights. It has been over 40 years since Roe v. Wade was decided, and the anti-abortion forces have been whittling away at this right for almost that entire period. Look for the anti-marriage-equality forces to continue fighting on other fronts, always insisting that their religious rights are the ones being infringed. There are still 13 states without gay marriage, and even in the 37 states that now allow it, there are plenty of people who do not agree that it should be happening. The question of where one person's civil rights end and one person's religious rights begin is not going to be settled by forcing all officials in Alabama to marry gay couples, or even all states to do so, because, as Roy Moore personifies, there are a whole lot of people who are not going to accept societal change without fighting it as hard as they know how. And that fight could take longer than anyone now expects.

 

Chris Weigant blogs at:

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