Moore Prepares for Battle

In week a that has seen discussion of lost causes, the Chief Justice of the Alabama Surpreme Court appears poised to fight one last battle.

MooreVia  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.

FILED UNDER: Law and the Courts, US Politics, , , , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. C. Clavin says:

    This has been an amazing week with the Confederate flag kerfuffle, Obamacare, and now marriage equality. It’s like the 60’s in here!!!
    Moore and a bunch of Republicans saying they’ll ignore SCOTUS is one thing.
    I wouldn’t be surprised to see some redneck, stirred up by all the Republican vitriol, lose it and do something really stupid.

  2. edmondo says:

    At his swearing in, Roy Moore took an oath of office that starts, “I do solemnly swear (or affirm as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Alabama…”

    See ya later (soon to be) ex-Chief Justice. Your white hood is calling you.

  3. Ron Beasley says:

    Mississippi will remain a third world country within the United States as long as Bible thumping wingnuts like Roy Moore are calling the shots. Would you build a factory or business in Mississippi?

  4. C. Clavin says:

    @Ron Beasley:
    Or Louisiana?

  5. Grewgills says:

    @Ron Beasley:
    Roy Moore is chief just ice of the Alabama Supreme Court, not Mississippi. He is working hard to take away Alabamans’ ability to say “at least we’re not Mississippi” though.

  6. Paul Hooson says:

    George Wallace blocking the schoolhouse doors to Black schoolchildren quickly comes to mind…

  7. al-Ameda says:

    Don’t get me wrong here but …
    I’d love to keep guys like Roy Moore front-and-center as we move into the 2016 campaign season.

  8. Argon says:

    Moore is going to look good in prison attire.

  9. Gustopher says:

    Desegregation required federal troops, did it not? Why do I think Judge Moore isn’t going to get gay married without federal troops forcing him to? Obama will probably have to find a husband for him — I’m sure there are a couple of available cabinet secretaries to pick from, or he can find someone on Craigslist.

  10. C. Clavin says:

    This guy is a Republican…and vehemently opposed to gay people.
    I got $50 says he’s just still in the closet.

  11. Ron Beasley says:

    @Grewgills: My bad, I apologize..

  12. Grewgills says:

    @Ron Beasley:
    I wish he were from Mississippi.

  13. OzarkHillbilly says:

    What a Mooron.