Defying history, the law, and common sense, Alabama Chief Justice Roy Moore has issued an order prohibiting Alabama probate judges from issuing marriage licenses to same-sex couples.
Those judges now face a choice between disobeying the law of the land and disobeying their boss. Moore issued his law not as chief justice, but in his administrative role as head of the Alabama court system.
This is not Justice Moore’s first Hail Mary in the lost cause against gay marriage—and he’s not alone. All over the country, activists and law professors are wasting paper on fatuous proclamations that Obergefell v. Hodges is not really the law of the land, or is illegitimate because it’s so horrible, or is somehow, some way not as binding as the Supreme Court said it was (PDF).
Roy Moore is just the only one who’s a state supreme court justice.
As with Moore’s past efforts to delay the inevitable, today’s order was a mélange of the sensible and the risible.
On the sensible side, Justice Moore does have some law on his side—in fact, three extremely narrow, technical threads on which he hangs his order.
First, technically speaking, Obergefell only bound the five states that were a party to it. Since Alabama was not one of those states, technically its law is caught in limbo. Second, the Alabama Supreme Court upheld its same-sex marriage ban on March 3, 2015.
And third, injunctions stemming from two federal cases challenging the ban are, as Moore opined last February (PDF), only binding on the executive branch, not the judicial branch—which includes probate judges. This appears to have been an oversight, the result of a pleading error by one of the parties. But rather than extend them in a common-sense way, Moore chose to restrict them in a nonsensical one.
So, as three hyper-technical matters of law, Obergefell doesn’t govern, the Alabama case stands, and the federal injunction doesn’t apply.
But that’s where it all becomes laughable—if not outright dishonest.
It is completely obvious that the Obergefell decision does, indeed, govern all 50 states. The logic it applied to Michigan is equally applicable to Alabama. That’s why LGBT activists broke out the champagne last June. It’s also why judges and clerks around the country, with only a handful of exceptions like Kim Davis, have applied the law and granted same-sex marriage licenses for months now.
Even the cases upon which Moore relies, in fact contradict him. For example, Moore cites an Eighth Circuit case decided on Aug. 11 that said “The [Obergefell] Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee—not Nebraska.” But that case affirmed, not rejected, the right to same-sex marriage in Nebraska, and forbade Nebraska from blocking it while the court case wound down to its inevitable conclusion.
This happens all the time. When the Supreme Court rules on an issue, it does not automatically end all the cases that deal with it. But it does make their outcomes obvious. So, while the legal matters are formally resolved, lower courts issue or stay injunctions in light of the Supreme Court ruling.
For example, when the Supreme Court outlawed miscegenation bans in 1967, those bans technically remained on the books in 16 states, and many were not repealed until quite recently. But courts immediately issued injunctions forbidding the enforcement of those laws.
To take another example, many of the sodomy laws at issue in Lawrence v. Texas are technically still on the books. But courts everywhere have prohibited their enforcement.
Obergefell, obviously—laughably obviously—is similar. As the Supreme Court wrote, “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them… The State laws challenged by Petitioners in these cases are now held invalid.”
Yes, as Justice Moore italicizes in his order, only “the State laws challenged… in these cases” were invalidated last June. But the rest of that paragraph obviously applies to all same-sex couples everywhere. There is no distinction between those in Alabama and those in Michigan, and so the legal outcome of the Arizona cases is a foregone conclusion. To cherry-pick one clause from the entire paragraph is, at best, facetious.
And it’s not unlike the way Moore cites that Nebraska case: snipping out two words that support his position, and ignoring all of the context.
Where the laughter stops, though, is in Alabama’s 66 probate court offices. These judges and their clerks are, with only a handful of exceptions, loyal public servants who are trying to do their jobs. Many of them personally oppose gay marriage, but recognize that they’ve sworn oaths to enforce the Constitution, not the Bible. What the hell are they supposed to do now?
Perhaps the worst part of Moore’s odious order is when he cites the “confusion” among Alabama judges, as if that confusion simply arose on its own somehow. In fact, he sowed it himself, with his court- and common-sense-defying orders last February, and he has watered those seeds with his absurd hair-splitting today.
Of course, Moore’s order will be rendered null and void, hopefully expeditiously, by a federal court in Alabama formally closing the same-sex marriages cases still pending, or extending the injunctions in them to judicial as well as executive employees. The tide of history will not be turned.
But in the meantime, not only has Moore demeaned every married couple in Alabama, straight and gay, he has also thrown his own employees under the bus. If I were a probate judge in Birmingham, I’m not sure what I would do tomorrow morning.
Roy Moore’s symbolic snatch of demagoguery may play well at the polls someday. But in the meantime, he has disrespected Alabama’s LGBT citizens, disrespected the rule of law, and disrespected all those doing their best to enforce it.