Gay marriage: One judge fights the weight of history

February 12, 2015
Donna and Tina exchange rings during their marriage ceremony outside the Jefferson County Courthouse in Birmingham

Donna and Tina exchange rings during their marriage ceremony outside the Jefferson County Courthouse in Birmingham, Alabama, February 9, 2015. REUTERS/Marvin Gentry

Alabama Supreme Court Chief Justice Roy Moore invoked states’ rights on Sunday when he took a stand against same-sex marriage, defying the authority of a federal court.

Moore has long been a conservative rebel. He gained national attention in 2003 by defying a federal appeals court that ruled the Ten Commandments monument he had placed in his courthouse was unconstitutional. Though a state judiciary ethics panel subsequently removed him from office, Moore won reelection in 2012. “I have no doubt this is a vindication,” Moore boasted after that win.


Workers preparing to remove a monument of the Ten Commandments from the rotunda of the Alabama Judicial Building in Montgomery, Alabama, August 27, 2003. REUTERS/Tami Chappell

Now he is back in the limelight after instructing Alabama probate judges, in defiance of a federal judge’s ruling, not to issue same-sex marriage licenses. Moore’s proclamation evoked powerful memories of the 1960s civil-rights struggle, when Southern Democrats used similar arguments against the social and political forces pressing for racial justice.

Moore’s action is just as unlikely to prevail. Even the most conservative Republicans understand that these kinds of arguments are not likely to work today. Through the mid-1960s, Southern conservatives were able to use claims of states’ rights with great effect against civil-rights activists. In 2015, however, largely because of the way the civil-rights movement discredited states’ rights conservatism as a weapon against basic human rights issues, Moore may be standing alone.

The states’ rights doctrine was at the center of the debates over civil rights between the 1930s and 1960s. There are certain areas of government, this argument asserts, where states are protected from federal interference.

States’ rights arguments had replaced more explicit rhetoric against racial equality that had been common among Southerners, but was no longer tolerable in the post-World War Two period.

When civil-rights activists demanded the desegregation of the South and voting rights for all African-Americans, Southern conservatives usually relied on states’ rights as their main argument against federal legislation. They used this reasoning to reject anti-lynching bills, fair-employment commissions, desegregation laws and the federal enforcement of voting rights.


President Lyndon B. Johnson talking with Martin Luther King Jr. in the Cabinet Room of the White House in Washington, March 18, 1966. REUTERS/LBJ Presidential Library photo by Yoichi Okamoto

Yet President Lyndon B. Johnson, Martin Luther King Jr. and other proponents of civil rights were able to break through the states’ rights blockade in 1964 and 1965. How did they do so?

Moral suasion was the most important tactic that liberals used. Nobody in Washington was as dramatic as Hubert Humphrey. He was a Senate candidate from Minnesota when he told the 1948 Democratic National Convention that Southerners who planned to continue talking about states’ rights should leave the party.

“My friends,” Humphrey said in a rousing televised speech, “to those who say that we are rushing this issue of civil rights, I say to them we are 172 years late. To those who say that this civil-rights program is an infringement on states’ rights, I say this: The time has arrived in America for the Democratic Party to get out of the shadow of states’ rights and to walk forthrightly into the bright sunshine of human rights.”

Some Southerners decided to bolt the party. South Carolina Governor Strom Thurmond, for example, unsuccessfully ran as a third-party presidential candidate.

Liberal Democrats continued to use Humphrey’s kind of rhetoric, attempting to expose states’ rights arguments for what they often were — conservative opposition to social justice.

Rev. Martin Luther King Jr. marches with other civil rights leaders and marchers during the 1963 March on Washington for Jobs and Freedom

Martin Luther King Jr. (C) leads other civil rights leaders and marchers during the March on Washington for Jobs and Freedom, August 28, 1963. REUTERS/Rowland Scherman/U.S. National Archives

Words were not enough, however. Civil-rights activists also relied on protests and confrontations with local authorities to demonstrate to the nation just what states’ rights meant in practice. In 1963, King set up shop in Birmingham, Alabama, for Project “C” (for confrontation).

It was one thing to hear a Southerner pontificate about states’ rights but quite another for the American public to watch police on television as they opened powerful water hoses and set dogs on peaceful protestors, including black children. The states’ rights arguments of Southerners like Governor George Wallace of Alabama became far weaker politically once protesters brought this reality to the American electorate.

Besides moral force, Johnson used military force. Though he had hesitated about taking this step, fearing a severe backlash, the president was willing to send in troops when Southern obstructionists sought to block progress on civil rights.

Civil-rights proponents also used legal strategies to overcome states’ rights. The Justice Department relied on the Constitution’s Commerce Clause to enforce federal anti-discrimination regulations on businesses that crossed state lines. The clause was an avenue for the federal government to regulate the racial practices of businesses in spite of claims that states had the right to set their own course in these matters over the federal government’s edicts.

The U.S. Supreme Court supported this strategy and gave constitutional imprimatur to the legislation of this era.


Alabama Chief Justice Roy Moore in Montgomery, Alabama, August 28, 2003. REUTERS/Tami Chappell

As with the civil-rights movement, same-sex marriage activists need to confront the states’ rights claims of their opponents with clear and compelling moral arguments. They need to expose the human toll that judicial decisions rooted in states’ rights have on Americans who are trying to start families and uphold the family ideals that conservatives have long extolled. They will also need to turn to the best legal minds to counteract these kinds of attacks if they prove effective.

The truth is, however, that these activists probably won’t need to do so much. The forces for civil rights were victorious in their battle against states’ rights conservatism, and their success discredited the arguments with regard to these kinds of human-rights issues, though they remain a familiar and effective refrain on issues such as economic regulation.

Moore’s states’ rights decision comes at the wrong moment in history, a time when fewer Americans will be swayed by his  arguments and where there will be intense pushback.

Using state’s rights against same-sex marriage rights just doesn’t command much support in modern America — in large part because of the accomplishments of the civil-rights movements in the 1960s.


We welcome comments that advance the story through relevant opinion, anecdotes, links and data. If you see a comment that you believe is irrelevant or inappropriate, you can flag it to our editors by using the report abuse links. Views expressed in the comments do not represent those of Reuters. For more information on our comment policy, see

That’s fine mister Zelizer. We know who’s doing this. We have a plan for you and yours. This time there won’t be an allied army ready to cross the ocean to save your filthy hides. This time you don’t get away.

Posted by summarex | Report as abusive

Yes, and now it’s perfectly OK for a whole industry, Hollywood movies, to put out a blatant lie about a former president.

Slave anger needs to be addressed- it is a social phenomenon that is hurting America and Americans. When they teach kids about slavery and show them things like “Roots” (which took away my black friends in 2nd grade when I went to school in Los Angeles with them) they also need to be taught that NO ONE IS DOING THAT TO YOU OR YOUR FAMILY TODAY.

Posted by LetBalanceCome | Report as abusive

@Summarex – I think your tin foil hat is a little loose – might want to adjust it.

Posted by BlueInBama | Report as abusive

We are still paying the price for the Southern leaders’ hot-headed withdrawal from the Union in 1860. The South should have waited out the Lincoln years, in what most likely would have been a one-term administration. Lincoln was elected with nowhere near a majority of the popular vote and a more united Democrat Party could have prevailed in 1864. But, instead we had a not-so-Civil War and the end result was the setting of the stage for an overwhelmingly powerful federal government and the forever marginalization of the concept of “States Rights.” Without the Civil War, there would not have been a 14th Amendment to the Constitution, the sledgehammer with which the federal government has diminished the power of the States to where it is now only a fleeting reference in dusty history books. Unfortunately, for those of us who still believe in a country that follows a more moral path, the descent into hedonism seems to be inexorable. God help us.

Posted by funksoul6 | Report as abusive

Always enlightening to read the words of a U.S. Racist. Thanks for reminding me of one of the reasons I left your hate-filled country.

Posted by YoungTurkArmy | Report as abusive

The South is a cancer.

Posted by AlkalineState | Report as abusive

It sounds like today’s “human rights” is pitting itself against the old “states’ rights”. I’m sorry to see this article has drawn out a few haters among the commenters.

Posted by Yowser | Report as abusive

States’ rights vs. individual rights.

Some people like state power, I guess. Mostly Christian conservatives who are afraid of REAL freedom.

Posted by AlkalineState | Report as abusive