by Harvey Fiser, Associate Professor of Business Law at Millsaps College
All eyes are once again focused on our southern states and their leaders for again defying federal court orders. This time, as last, is about violating the constitutional rights of its citizens. The latest in the long line of outspoken obstructionists is Alabama Supreme Court Justice Roy Moore. Moore, infamous for once being removed from his position on the Alabama Supreme Court for defying a federal court order to remove a 2.6-ton monument of the Ten Commandments from the rotunda of Alabama’s Supreme Court building, is the lead mouth-piece on the current issue of same-sex marriage.
On Monday, February 9, after a denial of a stay request by both the Eleventh Circuit and the United States Supreme Court, United States District Court Judge Granade’s order took effect. The order declared Alabama’s bans on same-sex marriage violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. On that Monday, same-sex couples were allowed the same marriage rights as all other couples in Alabama – until they weren’t.
Perhaps forgetting the commandment, “remember the Sabbath and keep it holy (Exodus 20:8),” Justice Moore, on Sunday, February 8, set aside any Sabbath work restrictions and issued an Administrative Order prohibiting all probate judges in Alabama from granting marriage licenses to same-sex couples despite the federal court order. Moore supported his order with the technical fact that neither the United States Supreme Court nor the Supreme Court of Alabama had ruled on the Alabama laws – never mentioning the denial of a stay by the U.S. Court of Appeals for the Eleventh Circuit five days prior. The U.S. Supreme Court did act the next day, and, on Monday, February 9, the path was cleared for same-sex couples to marry in Alabama again. Surely this satisfied Moore’s Sunday declaration. Except, it didn’t.