Alabama Chief Justice Roy Moore’s office overlooks Montgomery’s Dexter Avenue, a history-soaked thoroughfare topped by the Alabama Capitol, where Jefferson Davis was inaugurated president of the Confederacy and where the Rev. Martin Luther King Jr. ended the 1965 march for voting rights.
As gay and lesbian couples left a nearby courthouse clutching marriage licenses earlier in February, Moore, an outspoken opponent of marriage equality, was fighting to stop the weddings using a states’ rights argument that conjured up those historical ghosts of slavery, the Civil War and the battle against desegregation.
There has been resistance in other states to the tide of rulings allowing same-sex couples to wed. Some Florida clerks’ offices scrapped all marriage ceremonies rather than perform same-sex unions. In North Carolina and Georgia, legislation is being developed to let employees, based on religious beliefs, opt out of issuing marriage licenses to gay couples.
No state, however, has gone as far as Alabama, where the 68-year-old Moore instructed the state’s probate judges not to issue marriage licenses to gay couples.
Moore, who in 2000 gained notoriety for his refusal to follow an order to remove a Ten Commandments monument from the courthouse, told Fox News Sunday that legalizing marriage for gays alters God’s “organic law.”
The justice objected to a Jan. 23 ruling by U.S. District Judge Callie Granade that Alabama’s gay marriage ban violates the 14th Amendment’s guarantee of equal protection and due process. After the Supreme Court on Feb. 9 refused to stay the decision, Alabama became the 37th state — plus the District of Columbia — where gays and lesbians can legally wed.
But same-sex couples, as of press time, still could not obtain marriage licenses in every county in Alabama. At least 19 probate judges, under Moore’s direction, refused to issue licenses to lesbians and gays.
Moore, who is head of the Alabama court system, threw that system into disarray when he urged the probate judges in a letter to stand against “judicial tyranny.” He claimed Granade had no authority to “redefine marriage” for the Southern state.
Moore said probate judges were not defendants in the case, so they were not subject to Granade’s order.
“She has no control over the state of Alabama to force all probate judges to do anything,” Moore said. “This is a case of dual sovereignty of federal and state authorities. The U.S. Supreme Court is very clear in recognizing that federal courts do not bind state courts.”
Granade later issued an order in favor of same-sex couples denied licenses by probate judges.
“The law is clear — all Chief Justice Moore has done is create chaos and his order is clearly out of bounds,” said Greg Nevins of Lambda Legal, an LGBT legal defense group. “The Supreme Court has entertained the state’s request for a stay and rejected it. Same-sex couples and different-sex couples all enjoy the fundamental right to marry, and probate judges should not be interfering with that right.”
Parallels to 1960s
Moore’s actions drew inevitable parallels with former Gov. George Wallace’s 1963 “stand in the schoolhouse door” aimed at preventing federal court-mandated desegregation at the University of Alabama.
Wallace was attempting to fight integration nine years after education segregation was ruled illegal by the U.S. Supreme Court.
“The rhetoric and demagoguery of states’ rights and federal judges, you can’t help but make that comparison,” said Doug Jones, a former U.S. attorney who prosecuted two Ku Klux Klansmen who bombed Birmingham’s 16th Street Baptist Church in 1963, killing four black girls in a crime that helped galvanize the civil rights movement.
Moore has said he believes he would not be bound to obey a wrongful ruling.
“We’ve got to understand that what a judge says is not law,” Moore told Fox News.
Many legal experts think Moore and other states’ rights advocates are on shaky ground. Ruthann Robson, a law professor at the City University of New York, said Granade’s decision should be considered the law of the state unless overruled by a higher court or contradicted by a state court.
“If what Moore says is true, then no federal court could ever hold a state law, regulation or policy unconstitutional. And the 14th Amendment, then, would be essentially meaningless,” Robson said in an email.
It’s unclear what Moore’s reaction would be if the U.S. Supreme Court determines that gay marriage bans nationwide are unconstitutional when the justices issue their ruling later this year. But Robson pointed to a 1958 decision involving a school desegregation fight in Little Rock, Arkansas, that made it clear states must adhere to the high federal court’s interpretation of the Constitution — a cornerstone of the inherent authority the U.S. government has on constitutional issues over the states.
“If parties defy a direct order, the remedy is contempt,” she said. An official found in contempt can be fined or even jailed.
Moore already faces an ethics complaint filed by the Southern Poverty Law Center, which is based on Montgomery.
“In 2003, responsible public officials in Alabama had no choice but to remove Chief Justice Moore from office because he refused to comply with a binding federal court order,” said SPLC president Richard Cohen. “By now raising the possibility that he may not comply with a U.S. Supreme Court decision, Moore has proven that he has not learned his lesson.
“Justice Moore is intoxicated by his own sense of self-righteousness. He doesn’t seem to understand that we are a nation of laws, not of men.”
Meanwhile, Alabama Gov. Robert Bentley, a Republican and Southern Baptist who reads his Bible every morning in his office, appears impotent. He has said he believes marriage should be between a man and a woman, but that he doesn’t want Alabama to go against history’s tide this time. So, the governor has taken no action involving the court order for marriage equality.
To do so, he said in a news statement, “would only serve to further complicate this issue.”
