Washington, D.C. — It has been five months since the U.S. Supreme Court declared that the U.S. Constitution protects the right to marry for same-sex couples, and 99.9 percent of Americans now live in counties that offer marriage licenses to all couples, according to data on county compliance from the website Ballotpedia.
As outlined in a new issue brief released today by the Center for American Progress, however, in Alabama and a handful of other states—including Texas, Kentucky, Arkansas, Mississippi, and Louisiana—judges and magistrates are defying the Court and the Constitution by refusing to implement the marriage equality decision. Judicial resistance to marriage equality has taken two forms: Some judges and magistrates deny the U.S. Supreme Court’s authority to issue the ruling, while other officials justify their refusal to grant marriage licenses to same-sex couples with an overly broad interpretation of religious freedom that trumps the Constitution.
According to Billy Corriher, Director of Research at Legal Progress and author of the issue brief, the counties where judges or magistrates still refuse to recognize marriage equality are in states that have seen increasingly politicized judicial elections and a flood of campaign cash into those races. Politicized elections require judges to cater to public opinion, instead of protecting individual rights in the face of political pressure.
The most substantial resistance to marriage equality now occurs in Alabama, where local judges and even the state supreme court have defied federal court orders to issue licenses to all couples. Months before the U.S. Supreme Court’s ruling in Obergefell v. Hodges, a federal judge in Alabama struck down the state constitution’s ban on same-sex marriage, but the Alabama Supreme Court ruled that state judges did not have to comply with the federal court order, even though the U.S. Constitution gives federal law supremacy over state law.
Read the issue brief, “A Handful of Elected State Judges Continue to Deny Marriage Equality,” here.
For more information or to speak to an expert on this topic, please contact Tanya S. Arditi at [email protected] or 202.741.6258.
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