Jay Bookman

Opinion columnist and blogger with The Atlanta Journal-Constitution, specializing in foreign relations, environmental and technology-related issues

Alabama still has "a wheel in the ditch and a wheel on the track"

The state of Alabama has claimed four of the last six national football titles, an accomplishment that makes them the object of envy among many on this side of the state border.

On the other hand, Alabama is also stuck with the embarrassment of Roy Moore as chief justice of its state Supreme Court, so that balances things out a bit.

In his latest escapade, Moore has ordered probate judges in Alabama to defy a federal court ruling and refuse to issue marriage licenses to gay couples in the state. Legally, Moore has no jurisdiction or control over probate judges, but some three-quarters of probate judges in the state are nonetheless refusing to issue licenses, with many citing Moore's "order" as cover for their decision.

As we all know, Alabama has been down this painful road before:

Fifty years ago, Alabama Gov. George Wallace stood in a doorway at the University of Alabama to block the entry of two black students, symbolically defying the orders of a federal judge to desegregate the university. In explaining his stance, Wallace used much the same arguments that are now offered by Moore, with both men complaining that the federal courts were overruling decisions made by the people of Alabama.

There's more than a bit of irony to that argument. Many conservatives like to lecture that "this is not a democracy, this is a republic." Well, this is that catch-phrase put into action. This is that distinction given meaning. In a mythical "pure democracy", all questions would be decided by popular opinion and in much of the country, including Alabama and for the moment Georgia, gay marriage would still be outlawed. The bigotries and prejudice of the majority would be given free rein.

But in a republic -- which is actually a subset of democracy -- the natural rights of the individual and the rights of minorities are protected from violation by the majority. That's exactly what the federal court has done in overturning Alabama's "Sanctity of Marriage Amendment" and "Marriage Protection Act".

A lesbian couple from Mobile, Cari Searcy and Kimberly McKeand, had been married in California. However, the state of Alabama refused to recognize the marriage and had also refused to allow Searcy to adopt McKeand's eight-year-old son. The couple sued in federal court, demanding that they be treated like any other married couple, and last month they won summary judgment.

"Laws that implicate fundamental rights are subject to strict scrutiny and will survive constitutional analysis only if narrowly tailored to a compelling government interest," wrote U.S. District Court Judge Callie Granade, an appointee of President George W. Bush. "... the institution of marriage itself is a fundamental right," and Alabama had offered no evidence of a "compelling government interest" in refusing to recognize the legal marriage of Searcy and McKeand.

Granade's assessment of the case was pretty frank:

"(Alabama's attorney general) contends that Alabama has a legitimate interest in protecting the ties between children and their biological parents and other biological kin. However... the attorney general does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children...

The Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote. There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples....

In sum, the laws in question are an irrational way of promoting biological relationships in Alabama. ...If anything, Alabama’s prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children. Those children currently being raised by same-sex parents in Alabama are just as worthy of protection and recognition by the State as are the children being raised by opposite-sex parents."

There really is no good counter-argument, or at least none that doesn't rely on bigotry as its foundation. With Granade's decision, Alabama becomes the 37th state in the country in which gay marriage is legal. Georgia is one of the 13 in which it is not, and Attorney General Sam Olens continues to fight to see that we remain in that category, a choice that history will not judge kindly.

But Georgia's time is coming; the decision by the U.S. Supreme Court not to delay enforcement of Granade's ruling in Alabama gives us a clear preview of its own decision in the next few months that will settle the matter nationwide. I trust that unlike our neighbors to the west, Georgia officials will accept that ruling graciously and quickly extend to gay Georgians the full rights and privileges granted to everybody else.

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About the Author

Jay Bookman writes about government and politics, with an occasional foray into other aspects of life as time, space and opportunity allow.