Via AL.com:  Is Alabama Chief Justice Roy Moore setting up a battle over gay marriage?

Southern Poverty Law Center President Richard Cohen, whose group has fought in court for gay marriage rights in Alabama, believes Moore also laid the ground work Friday for defying the U.S. Supreme Court’s ruling on gay marriage.

Cohen cited Moore’s dissent in an Alabama Supreme Court opinion issued a few hours after the U.S. Supreme Court issued its gay marriage decision.

The dissent was in the case of American Bankers Insurance Company of Florida vs. Gladys Tellis. In that case Tellis and others had sued the insurance company regarding coverage. A trial court judge denied the insurance company’s request to send the matter to arbitration. The insurance company appealed that ruling to the Alabama Supreme Court, which today reversed the lower court’s ruling.

Cohen stated that Moore in the dissent “made the unprecedented claim that he was not bound by decisions of the U.S. Supreme Court that conflict with his view of the U.S. Constitution.”

In his dissent Moore writes “the Supreme Court’s interpretation of a federal statute does not preclude all lower courts from considering constitutional questions the Supreme Court has never considered.”

Moore went on to state: “If the Supreme Court’s precedent interpreting a federal statute conflicts with the United States Constitution itself, then our duty is not to predict the next bend in the crooked path by asking, ‘What would the Supreme Court do?’ Moore writes. “Instead, our duty, under oath, is to ask, ‘What does the Constitution say?’

Indeed, if one actually looks at the dissent in question one finds the following rather remarkable footnote (#9):

However, the second paragraph in Article VI of the United 9 States Constitution says that state judges are bound by the supreme law of the land, which consists of three things: (1) the Constitution itself, (2) laws of the United States made pursuant to the Constitution, and (3) treaties made under authority of the United States. A Supreme Court opinion is not the Constitution itself; it is not a law of the United States made pursuant to the Constitution; and it is not a treaty made under the authority of the United States–how then does Article VI bind state judges to uphold Supreme Court opinions?

By this logic (I use the term advisedly) no court or judge is bound by any other court’s ruling since a court ruling is not “(1) the Constitution itself, (2) laws of the United States made pursuant to the Constitution, and (3) treaties made under authority of the United States.”  Indeed, it would seem that by this reasoning no one is bound by a court ruling because it isn’t one of the three things listed.

At a minimum this argument is apropos of my previous post on constitutional language insofar as words games of this nature underscore that interpretation of the text is always in play.

Beyond that it shows an approach to jurisprudence that is breathtaking in its audacity (and utterly in contradiction to the role the Supreme Court and its ruling have played since 1803 at least).

Meanwhile (and despite SCOTUS’ ruling) Moore is standing by the notion that despite the SCOTUS ruling that probate judges in Alabama are not to issue same sex marriage licenses (source):

Earlier this year, Moore issued an administrative order prohibiting probate judges from issuing marriage licenses to same-sex couples, and he removed himself from the same-sex marriage case already before the Alabama Supreme Court.

“Of course my administrative order is supersized by the Alabama Supreme Court, and they have entered an order in the case and issued an injunction which binds the probate judges till they remove it now,” Moore said.

Moore says the Alabama Supreme Court will have to address that injunction in light of the U.S. Supreme Court’s ruling, and until then Alabama probate judges cannot legally issue same sex marriage licenses.

There is a 25-day period in which a rehearing could occur in the case before the Supreme Court of the United States, but those re-hearings rarely happen. Moore says until that 25 day period is up, the order is not effective over Alabama’s injunction.

And the New Lost Cause rolls on.