by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State
Alabama’s Chief Justice Roy Moore just doesn’t know when to stop fighting a battle that he has already lost. Yesterday, Moore issued an “administrative order” that purports to prohibit state probate judges from issuing marriage licenses to same-sex couples.
Moore’s “order” is nothing more than legally meaningless political grandstanding. The U.S. Supreme Court held in Obergefell v. Hodges that the U.S. Constitution prohibits states from denying same-sex couples the fundamental right to marry.
Moore’s “order” argues that Obergefell technically invalidated bans on same-sex marriage only in Michigan, Kentucky, Ohio, and Tennessee, and that Alabama’s marriage ban should stand until specifically declared invalid by the courts. But Obergefell is now the law of the land, and all public officials in the country must obey it.
In any event, the federal courts already have expressly struck down the Alabama laws barring same-sex marriage. In January and May 2015 orders, U.S. District Court Judge Callie Granade declared those laws unconstitutional. Less than two months later, shortly after Obergefell was issued, Judge Granade enjoined all Alabama probate judges from denying marriage licenses to same-sex couples.
Then, in October 2015, the U.S. Court of Appeals for the Eleventh Circuit summarily affirmed Judge Granade’s invalidation of Alabama’s marriage laws. In doing so, the Eleventh Circuit specifically explained that Obergefell overrode a March 2015 Alabama Supreme Court ruling that had taken the position that Alabama’s marriage bans were valid.
Yet yesterday’s “order” by Moore principally relies on that nullified March 2015 ruling. Moore ignores the plain language of the Supremacy Clause of Article VI of the U.S. Constitution: “This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” As the U.S. Supreme Court has repeatedly recognized, this means that state officials cannot enforce state laws that federal courts have declared unconstitutional.
Any Alabama probate judges who follow Moore’s “order” and violate Judge Granade’s injunction will risk being held in contempt of court. That could mean fines or jail time. Kim Davis, a Kentucky clerk, found this out the hard way after she violated a federal-court order requiring her to issue marriage licenses to same-sex couples.
Yesterday’s “order” is the most recent in a series of actions by Moore that were contrary to federal-court rulings. In 2001, when he was also Alabama’s Chief Justice, Moore installed a Ten Commandments monument in the rotunda of the State Judicial Building. A federal court concluded that the monument violated the separation of church and state and ordered Moore to remove it.
But Moore refused to remove the monument and willfully violated the federal court’s order, publicly declaring that he would not follow it. The other eight Justices of the Alabama Supreme Court then ordered that the monument be removed. And a state judicial ethics panel unanimously concluded that Moore violated the Canons of Judicial Ethics through his disobedience and removed him from office. The Alabama Supreme Court unanimously affirmed that ruling.
Upon leaving office, Moore became president of the Foundation for Moral Law, an extremist Religious Right legal organization that files friend-of-the-court briefs arguing that judges should disregard binding U.S. Supreme Court precedents and instead issue decisions based on religious principles. Alabama voters, however, were not dismayed by Moore’s past shenanigans and voted him back into the office of Chief Justice in November 2012.
It did not take Moore long to return to his practice of disregarding federal-court rulings. After Judge Granade issued orders in January 2015 declaring Alabama’s marriage ban unconstitutional and prohibiting the state’s attorney general from enforcing it, Moore issued letters urging and then an order purporting to prohibit Alabama probate judges from giving same-sex couples marriage licenses.
Moore’s latest effort to induce Alabama judges to violate federal-court rulings is shameful. He deserves to be removed from office again. A judge’s duty is to uphold the law and promote respect of it by others. Moore has repeatedly done the opposite — the worst thing a judge can do. Moore has violated the law and is now attempting to coerce others to do the same.
That undermines public respect for our system of justice. In addition, Moore’s conduct invidiously promotes hatred for gay and lesbian people, in the face of U.S. Supreme Court rulings that have settled their rights to equality, at a time when our country should be moving on from the divisions produced by the opposition to marriage equality.
Let us hope that Moore’s “order” of yesterday will be but a footnote in his history of disregard for the law instead of the beginning of yet another long chapter of it.
As part of its Protect Thy Neighbor project, Americans United for Separation of Church and State represents same-sex couples in Alabama litigation that vindicated their right to marry. Americans United also represented plaintiffs in the Ten Commandments case that led to Moore’s removal from office.