Religious beliefs do not give Alabama probate judges license to pick and choose among the various functions their office is authorized to perform, including same-sex marriages. If they feel that there is a conflict between their responsibilities and their conscience, the solution is simple –they should resign. It's the only honorable thing to do.
Since the U.S. Supreme Court ruled last week that bans on same-sex marriages are unconstitutional, we've seen many Alabama probate judges – including Steven Reed in Montgomery, Alan King in Jefferson County, and Don Davis in Mobile – say that they'll comply with the law by issuing marriage licenses to same-sex couples.
But some Alabama probate judges say that they'll get out of the marriage business altogether.
Some say that they will no longer issue marriage licenses to anyone – straight or gay. Others say that they will issue licenses but stop conducting any marriages in their courthouses.
Their strong religious beliefs, the judges say, justify their refusal to continue to perform the routine functions of their offices – functions they are paid to perform and on which the people who elected them have long depended.
We've seen this type of defiant, passive-aggressive behavior before.
After the U.S. Supreme Court's school desegregation decision in Brown v. Board of Education, officials in Virginia shut down entire school systems rather than let black and white children learn together. Closer to home, Montgomery officials closed the city parks and swimming pools rather than let black and white children play together.
So, the petulant behavior of certain probate judges is nothing new. Instead, it's just the latest sad chapter in the state's sorry history of resistance to federal law.
Here's an eerily similar example.
In 1967, the U.S. Supreme Court ruled in Loving v. Virginia that bans on interracial marriages were unconstitutional. That ruling was a linchpin behind the Court's decision last week that same-sex marriage bans are unconstitutional. Yet, three years after Loving, Alabama was still trying to preserve its ban on interracial unions.
It was shameful then, and the foot-dragging by some of our probate judges is shameful now. It sends the message that, as far as these public officials are concerned, members of the LGBT community are still second-class citizens. It gives a green light to other forms of discrimination. It undermines the very concept of the rule of law.
Geneva County Probate Judge Fred Hamic says that his intention to stop issuing marriage licenses is based, not on homophobia, but "strictly on [his] Christian beliefs." And we should take him at his word.
But Judge Hamic's religious beliefs do not give him a license to pick and choose among the various functions his office is authorized to perform. If he feels that there is a conflict between his responsibilities and his conscience, the solution is simple – he should resign. And so should every other probate judge who feels the same way. It's the only honorable thing for them to do.
From 2001 to 2003, I was involved in the lawsuit against Chief Justice Roy Moore over his placement of a monument to the Ten Commandments in the rotunda of the Judicial Building in Montgomery that houses the state appellate courts. When the federal court ruled that the monument had to be removed because it had the obvious purpose and effect of promoting religion in violation of the First Amendment to the U.S. Constitution, I felt certain that Moore would resign. I knew that he would never remove the monument, given his strongly held religious beliefs, and I was sure that he would never violate a federal court order.
And had Moore resigned, I would have respected him as a man of conviction.
But, instead of resigning, Moore disgraced his office by arrogantly refusing to remove the monument. His actions plunged the state into a crisis and forced more responsible state officials to remove him from office. His arrogance cost the state thousands of dollars.
The foot-dragging probate judges are minor officials compared to Moore. But their contention that their personal religious beliefs justify their refusal to issue marriage licenses is equally arrogant. Like all elected officials in Alabama, probate judges take an oath to "support the Constitution of the United States." They should live up to their oaths rather than disgrace their offices.