Roy Moore, the Chief Justice of the Alabama Supreme Court who has been at the center of controversy several times in his judicial career and who was once removed from office for defying a Federal Court Order, has issued an “Administrative Order” to Alabama’s Probate Judges telling that they should not issue marriage licenses to same-sex couples until the Alabama Supreme Court rules on the matter, setting up what seems like an inevitable confrontation with the Federal Courts:
Chief Justice Roy Moore issued an order today saying that a ruling issued last March by the Alabama Supreme Court remains in effect and that probate judges “have a ministerial duty not to issue any marriage license contrary” to Alabama’s law and constitutional amendment banning same-sex marriage.
In a four-page administrative order, Moore said the conflict between the state court ruling and the U.S. Supreme Court ruling in June has caused “confusion and uncertainty” among probate judges.
Moore said he issued the order today in his role as administrative head of the state court system. He quoted a state law that says the chief justice is empowered to “take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state.”
Moore wrote that since the U.S. Supreme Court ruling that many Alabama probate judges are issuing marriage licenses to same-sex couples, while others are issuing licenses only to opposite-sex couples or not issuing licenses at all.
“This disparity affects the administration of justice in this state,” he wrote.
U.S. District Judge Ginny Granade of Mobile ruled last January that Alabama’s ban on same-sex marriage violated the U.S. Constitution.
That touched off a wave of confusion and conflicting legal orders, as some Alabama probate judges began issuing same-sex marriage licenses, while others did not.
The Alabama Supreme Court issued its order in March in response to a request from two conservative groups, the Alabama Citizens Action Program and the Alabama Policy Institute, as well as Elmore County Probate Judge John Enslen.
The order enjoined probate judges from issuing licenses contrary to Alabama law.
Moore was not listed as participating in that order. Seven of the eight other justices concurred in the result.
About four months later, the U.S. Supreme Court issued its long-anticipated order, striking down state bans on same-sex marriage.
Moore, in his order today, says the Alabama Supreme Court continues to deliberate on how the U.S. Supreme Court ruling affects the state court’s orders.
Moore said rulings by federal courts since the U.S. Supreme Court ruling could affect the issue in Alabama.
Moore’s argument in his Order, which I’ve embedded below, is, of course entirely without any legal merit whatsoever. Even accepting the fact that the Supreme Court’s decision in Obergefell v. Hodges in theory only dealt with the same-sex marriage bans on the books in four states, it clearly applies to the nation as a whole given the fact that it is based on the Equal Protection Clause of the Fourteenth Amendment. While a state like Alabama could, at least temporarily, argue that the Supreme Court’s decision didn’t compel it to do anything at all, the reality is that the fact the Supreme Court’s ruling is binding on all lower Federal Courts, including the Federal Courts in Alabama and the Eleventh Circuit Court of Appeals. This means that the challenge to Alabama’s ban on same-sex marriage, which was already struck down by a Federal District Court Judge nearly a year ago, would have to be ruled upon in compliance with the Supreme Court’s ruling in Obergefell and that the District Judge will most likely, when appropriately petitioned, issue an order compelling all of the Probate Judges in the state to issue marriage licenses regardless of the genders of the parties requesting the license. Failure to comply with that order, of course, would subject any of the non-compliant Probate Judges to the same sort of contempt of court proceedings that Kentucky Clerk Kim Davis was faced with this past summer when she was refusing to allow her office to issue licenses to same-sex couples. There is nothing that Judge Moore, or the rest of the Alabama Supreme Court, which may or may not share Moore’s opinion on this matter, can do about any of this either, because the Supremacy Clause of the Constitution provides that Federal law supersedes state law where the two are in conflict such a they would be here.
The Supreme Court of the United States made all of this clear in Cooper v. Aaron, which dealt with efforts by southern states to defy the Court’s school desegregation ruling in Brown v. Board of Education, the Court held that such efforts were unconstitutional:
Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.
No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.
As he did many years ago when he attempted to defy a Federal Court Order regarding his unilateral decision to display the Ten Commandments on the grounds of the State Supreme Court Building, Chief Justice Moore is making “war against the Constitution” and has violated his duty to support it. He does not belong in office, or indeed anywhere near a courtroom.
Here’s Judge Moore’s Order:
