The Alabama Supreme Court has had a rough week. On Friday, the court issued a one-sentence order admitting that “Erm, um, well, urm, okay, fine! Whatever! We really don’t have the authority to overrule the U.S. Supreme Court’s same-sex marriage opinion in Obergefell v. Hodges. Are you people happy now?” The order came accompanied by 170 pages of bloviation, which read a bit as if Robert E. Lee had tried to spin General Orders No. 9 as a strategic victory.
Monday, in a different but related matter, the U.S. Supreme Court piled on by in effect issuing what I’ll call a Writ of Duh in a same-sex adoption case.
The Court summarily reversed the Alabama court, without hearing argument or full briefing. Monday’s unsigned per curiam decision was unanimous. Though some justices almost certainly still object to the Obergefell decision, none of them was willing to be identified with the state court’s ham-fisted attempt to punish an adoptive parent caught in an ugly same-sex divorce and custody battle.
The Alabama Supreme Court’s opinion in E.L. v. V.L. was clothed in the general-anesthetic language of “jurisdiction.” But under the surface lurked not only the bitter passions of a dissolving family but the posturing of elected conservative judges obliged, by Article VI of the Constitution, to face the fact that same-sex spouses and ex-spouses now have rights to marriage and to the dignity of family life.
A lesbian couple known only by their initials lived together in Hoover, Alabama, from 1995 until 2011. During that time, E.L. had three children through “assisted reproductive technology.” That meant E.L. was the legal parent under Alabama law; V.L. was not. In 2006, they temporarily moved to Georgia, where a state court permitted V.L., with E.L.’s consent, to become an adopted parent to the children. They then returned to Alabama.
By 2011, however, the couple split up. E.L. kept the children, and V.L. filed suit in an Alabama court asking for visitation rights, citing the Georgia adoption. E.L. fought back by arguing a variety of points, including that the Georgia same-sex adoption violated Alabama’s “public policy” (a code phrase for its constitutional amendment specifying that any “union replicating marriage of or between persons of the same sex . . . in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state”). Two lower courts rejected that argument; but the state supreme court issued a tricky ruling. It did not address the validity of same-sex families; instead, it held that Alabama courts were not obligated to respect the Georgia adoption.
This is usually a pretty big no-no under Article IV of the U.S. Constitution, which provides that “[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” A divorce, or an adoption, or any other judicial act in State A is almost always binding on State B. It’s something that the courts have felt pretty strongly about since roughly 1789. The only real exception would be if the first state court had no “jurisdiction” over the case.
“Jurisdiction” stems from the Latin words for “saying the law.” A court must have the power to “say the law” in any given case—by which is meant that it must have legal power, first, over the parties to the case (“personal jurisdiction”) and, second, over the kind of case (“subject-matter jurisdiction”).
I may want to sue my next-door neighbor in federal court for, let’s say, violation of Paraguayan intellectual-property law. The U.S. federal court won’t have subject matter jurisdiction, because (1) no statute puts it in charge of matters Paraguayan and (2) the parties are both citizens of the District of Columbia, meaning there’s no “diversity.” Fine. I jet off to Asunción and file suit in Paraguayan civil court. That court would have subject-matter jurisdiction, meaning it could hear the case; but it wouldn’t have personal jurisdiction over my neighbor; Paraguayan courts have no power to issue a summons to someone in D.C.
In V.L. v. E.L., the Alabama court engaged in some fancy footwork to determine that the Georgia court never could have heard the case. The argument went like this: Under Georgia law, the Georgia court was supposed to obtain a formal surrender of parental rights from E.L. before allowing V.L. to adopt; it didn’t (because E.L. was asking it to allow the adoption, and anyway Georgia law is unclear). Because it was supposed to get the surrender first, the adoption was invalid.
But disagreement over Georgia law, by itself, won’t signify: Under the Clause, the courts of one state can’t set aside judgments of another state’s courts just because the out-of-state judges don’t agree with the decision—that’s the meaning of “full faith and credit.” So the Alabama judges went into their dance: Georgia courts have power under the statute to allow adoptions; but, they reasoned, that power only exists if they make the right decision. Since in this case they made the “wrong” decision (according to the Alabama court), the Georgia court had no subject-matter jurisdiction; it was in effect not a court at all, and its decree was not binding on Alabama.
The logic was dishonest, and indeed repellent. The U.S. Supreme Court dispelled its force in dry language: “[The Alabama court’s analysis] is not consistent with this Court’s controlling precedent. Where a judgment indicates on its face that it was rendered by a court of competent jurisdiction, such jurisdiction ‘is to be presumed unless disproved.’ There is nothing here to rebut that presumption.” The Alabama court’s reading, the Court added, “would comport neither with Georgia law nor with common sense.”
Six pages; no dissents; no wasted words. Shoo, fly, don’t bother me.
By contrast, in another case, the Alabama court on Friday took 170 pages to discuss the unremarkable proposition that a state court can’t disobey, set aside, ignore, fold, bend, spindle, or mutilate a judgment of the United States Supreme Court. Here’s the entire operative part of the order: “IT IS ORDERED that all pending motions and petitions are DISMISSED.” Most of the other pages are occupied with sour grapes. Chief Justice Roy Moore (who lost his job once before when he defied an order of a federal court in a different case) was, as always, convinced that the world is eager to hear his views on a variety of subjects. He in his wisdom really thinks Justice Anthony Kennedy is a bad, bad judge for writing the Obergefell decision. Justice Tom Parker (founder of the conservative think-tank that brought the challenge) concurred specially to denounce the Supreme Court’s “despotism and tyranny.”
South of the Mason-Dixon Line, “tyranny” usually translates as “making me recognize the rights of people I don’t like.” It was thus in the days of slavery and segregation. In 1963, the late George Wallace opened his term as governor with the words, “In the name of the greatest people that have ever trod this earth, 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.” During the years that followed, the Alabama Supreme Court followed his lead, obfuscating, confusing, and denying the judgments of the U.S. Supreme Court requiring desegregation of schools and public facilities, until it was known around the country, and indeed the world, as a lawless panel of rogues.
The case that ended Friday was a first attempt by the state court to do the same for same-sex marriage. Even though a federal district judge had ordered state officials to follow Obergefell by issuing marriage licenses, a few extremists hoped the state court would issue a call to arms and order the clerks to stop it. The Court dismissed the petition without admitting that the issue is settled.
Wisely, but with ill grace, the state justices stepped back from the brink.