Alabama Chief Justice Roy Moore Declares War On The Constitution

Alabama Supreme Court Chief Justice Roy Moore tells Probate Judges they should not issue marriage licenses to same-sex couples, in clear defiance of the law and his duties as an officer of the Court.

Moore

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:

C.J. Roy Moore Administrative Order by Doug Mataconis

FILED UNDER: Law and the Courts, US Politics, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. gVOR08 says:

    Chief Justice is an elected position in Alabama. ‘Nuff said?

    In A Different Democracy our own Dr. Taylor et al mention that judges are elected only in the US and a few positions in, IIRC, Ecuador. It should be obvious why no one else is does it.

  2. @gVOR08:

    I don’t necessarily have a problem with judges at the trial court level being elected, but I don’t think it’s appropriate at the appellate level at all.

    In Virginia, Judges are not elected at any level but instead must be confirmed by the state legislature after appointment by the Governor. They are then subject to what essentially amounts to re-confirmation proceedings at regular intervals that very depending on what level of the court system they sit on. If they aren’t reconfirmed their term ends and a new Judge appointed or, of course, the Judge can choose not to submit their name for reconfirmation at the end of an applicable term. For the most part, this systems seems to work quite well at all levels.

    Of course, the alternative is life tenure as we have in the Federal system. I don’t have a problem with this system either and, in any case, changing it would require a Constitutional Amendment that seems unlikely at this point in time.

  3. Steve Hynd says:

    Can he be sent to the concentration camp in Oregon the lunatic insurrectionist fringe have been kind enough to open for themselves? 🙂

  4. C. Clavin says:

    I’ve got $50 that says this Judge is secretly as gay as pink ink.

  5. Moosebreath says:

    No, this is a continuation of his war on the Constitution, not a declaration. He started over a decade ago, as noted by a Federal judge at the time:

    “If all Chief Justice Moore had done were to emphasize the Ten Commandments’ historical and educational importance… or their importance as a model code for good citizenship… this court would have a much different case before it. But the Chief Justice did not limit himself to this; he went far, far beyond. He installed a two-and-a-half ton monument in the most prominent place in a government building, managed with dollars from all state taxpayers, with the specific purpose and effect of establishing a permanent recognition of the ‘sovereignty of God,’ the Judeo-Christian God, over all citizens in this country, regardless of each taxpaying citizen’s individual personal beliefs or lack thereof. To this, the Establishment Clause says no.””

  6. CSK says:

    In Massachusetts, anyway, judges are appointed by the governor and then confirmed by the legislature. Moore was elected. He can be impeached or recalled. I doubt either one of these is likely to happen.

  7. Mu says:

    Fed. judge to US marshal “When I said to drag Moore before me I didn’t mean literally, behind the car, on the interstate”

  8. t says:

    this just makes the day that I pack up and leave this place even sweeter.

  9. Ebenezer_Arvigenius says:

    It’s only by the cravenness of the ABA that this guy is still admitted to the bar :P.

  10. anjin-san says:

    Why not simply cut the state off from any and all federal funding and let them take a time out to think about things?

  11. CSK says:

    @anjin-san:

    That would be amusing. They can’t survive without blue state tax money.

  12. Tillman says:

    So would this be grounds for disbarment? It doesn’t look like judges (or that many lawyers, really) get disbarred to begin with.

  13. OzarkHillbilly says:

    There are some Oregon bird brains for whom this kind of insightful legal reasoning will fit right in.

  14. Davebo says:

    My girlfriend is cute. She calls them “little judges” as they have to raise money constantly to be re-elected.

    I agree with Doug. District court, fine. Appellate and above, crazy.

  15. Tony W says:

    @Davebo: Disagree. It is never appropriate to elect a judge. Just because district court only affects the little people doesn’t negate the conflict of interest.

    At every level I want impartial judges, not ones who promise to lock up our “criminals” (defined as those accused).

  16. Just 'nutha ig'rant cracker says:

    Once again, I will suggest that, as in the case of Kim Davis, I am willing to see him sent to God to judge in the great beyond. From what I understand, however, God doesn’t have an opening. so Judge Moore will need to find a new job.

    (And Doug is okay with people like me owning guns. Hmmmm…)

  17. Joe says:

    @Ebenezer_Arvigenius: The ABA (American Bar Association) does not handle state bar admissions. State bars handle them, commonly through an administrative arm of the state supreme court. As it turns out, this would be analogous to a governor impeaching him/herself. Pretty sure Alabama’s bar oversight committee, such as it probably is, believes [in]Justice Moore’s is doing God’s work.

  18. Grewgills says:

    @Joe:
    He was disciplined by the board over the 10 commandments thing and removed from his position as Chief Justice, so they are a bit more independent than you think.

  19. HarvardLaw92 says:

    I suspect that this unprovoked announcement is mainly about deflecting attention from his son’s felony drug charges (currently in process) having recently been publicized.

  20. ernieyeball says:

    @t:..this just makes the day that I pack up and leave this place even sweeter.

    Which place? The Earth?

  21. gVOR08 says:

    @Grewgills: That action removing Moore was motivated by a Federal Judge slapping the state with a $5,000 a day fine until they hauled his ten commandments monument away. Probably have to get to something like that again before the state will do anything.

    And several years after he was removed Moore stood for election to the post and was voted back in. The state may not be eager to hit replay on this whole thing, especially in an election year.

  22. Scott says:

    that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.

    It appears that this principle has been under at least rhetorical attack from the right wing in the last few years. Do any commenters have any reasonable worry that this principle may get traction? Any worry that some radical right wing Supreme Court may overturn or modify Marbury vs. Madison?

  23. Pch101 says:

    @Scott:

    The right-wing talks yammers on about “states rights” when they’re convenient, and tramples on them when they aren’t. (And invariably, “states rights” arguments are often intended to reduce rights, not to expand them.)

    States rights aren’t a principle, they’re just a tactic. The only principle that they have is getting what they want.

  24. al-Ameda says:

    @gVOR08:

    Chief Justice is an elected position in Alabama. ‘Nuff said?

    Direct democracy to elect judges and justices at any level is not a good idea.

    Governors nominate, and there are measures by which sitting justices and judges may be removed. To wit, a few years ago 3 justices on the State of California Supreme court were voted off the bench, essentially for not supporting death penalty executions.

  25. gVOR08 says:

    @Pch101: One of the permanent features of our democracy is that everybody, liberal or conservative, believes it’s a sacred, unchangeable principle that things should be handled at the state/federal level depending on where they think they can get the most sympathetic hearing cheapest.

  26. Franklin says:

    @ernieyeball: Beat me to it!

  27. C. Clavin says:

    @al-Ameda:
    We need to use whatever method necessary to rid ourselves of Scalia.
    He has gone around the bend.
    http://www.advocate.com/religion/2016/1/06/supreme-court-justice-scalia-government-should-favor-religion

  28. t says:

    @ernieyeball: no, hell.

  29. C. Clavin says:

    Not everyone in Alabama is insane; Tommy Ragland, the probate judge for Madison County, ordered his office to resume issuing licenses, after pausing long enough to read Roy’s order and stop laughing.

    But while we are talking about Red State failings……
    http://taxfoundation.org/blog/which-states-rely-most-federal-aid-0

  30. ernieyeball says:

    @Franklin: @t:..no, hell.

    Thank You Eric Burdon!
    https://www.youtube.com/watch?v=jxNEiZhpinY
    In June of 1966 after all us Seniors had done the Walk in the High School gym we all broke out in this tune and marched right out the door.
    There were several hundred of us.
    Couldn’t tell you where any of them are now.

  31. gVOR08 says:

    @Scott:

    Any worry that some radical right wing Supreme Court may overturn or modify Marbury vs. Madison?

    I can’t see any court giving up power, certainly not a Republican court. In any case, what else makes sense? 50 states get to each have their own interpretation of the Federal Constitution? The Prez gets to decide the Constitutional limits on everybody, including the Prez? Which IIRC was the expectation of the Founders, but it’s hard to see how that could possibly work well.

  32. Bill Lefrak says:

    There are gay people wanting to get married in Alabama? That has to be a joke.

    In any event, this sort of dichotomy is endemic to a system predicated upon dual-track governments. The “medical pot” businesses operating in the open in states without their own laws are doing pretty much the same thing, conceptually speaking, as this state court justice. Physician assisted suicide shops. Rent control and other land use items. Aggressive eminent domain cases. Plus every time a city council or county board of supervisors enacts some sort of “gun control” ordinance they’re so acting in far greater disregard of the Constitution than this Alabama justice.

    But for obvious reasons the brie and bric-a-brac left of the Internet won’t get nearly as riled up about extra-constitutional actions with which they agree (gun control, drugs, assisted suicide, rent control, etc.) as they do about actions with which they don’t agree. That’s the essence of leftism. The politics of narcissism.

  33. Franklin says:

    @Bill Lefrak: While you went a little off the rails there, I am slightly interested in what federal law you think makes physician-assisted suicide illegal.
    (And don’t try to cite the Controlled Substances Act – the Supreme Court already ruled that couldn’t be applied.)

  34. C. Clavin says:

    @Bill Lefrak:
    Apparently you have never actually read the Constitution.

  35. gVOR08 says:

    @C. Clavin: I’m sure he’s read the bright shiny Constitution in his head.

  36. Franklin says:

    @C. Clavin: I didn’t want to get into the tired old arguments about whether the slave-owning framers really wanted everyone walking around with machine guns. Or debate federal vs. state marijuana laws, which has real arguments on both sides. So I intentionally picked one of his examples for which he has exactly zero support for his feeble attempt to bash liberals.

    BTW, I didn’t know that physician assisted suicide was supposed to be a left vs. right argument. According to Gallup results in May 2015, about 61% of Republicans support it vs. 72% of Democrats, which I consider a relatively minor difference. (Same poll said that 80% of Independents support it, FWIW.)

  37. ernieyeball says:

    @gVOR08:.. I’m sure he’s read the bright shiny Constitution in his head.

    Gotta’ wonder what Texas Governor Abbot is reading.
    TX gov proposes constitutional convention; would give states power to overturn federal law
    http://www.cnbc.com/2016/01/08/tx-gov-proposes-constitutional-convention-would-give-states-power-to-overturn-federal-law.html
    Amendment XXVIII (proposed) Prohibit Congress from regulating activity that occurs wholly within one State.
    So I guess this means that Sheriff David Ward of Harney County, Oregon will still be free to roust Bad Ass Bundy and his Sad Sack Squatters out of the Beaver State even if Governor Abbot doesn’t want the Marines do it.

  38. Tyrell says:

    @al-Ameda: Let the people decide.
    “Here, sir, the people govern”

  39. gVOR08 says:

    @Tyrell:

    Complaints are everywhere heard from our most considerate and virtuous citizens … that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true.

    – Federalist No. 10

  40. Deserttrek says:

    @Steve Hynd: do you abuse children and small animals? probably