Even before Donald Trump chooses a Supreme Court nominee, the new president can take steps to make several contentious court cases go away. Legal challenges involving immigration, climate change, cost-free contraceptive care and transgender rights all could be affected, without any help from Congress.
The cases turn on Obama administration policies that rely on the president’s pen, regulations or decisions made by federal agencies.
And what one administration can do, the next can undo.
It is not uncommon for the court’s docket to change when one party replaces the other in the White House. That change in direction is magnified by the high-court seat Trump will get to fill after Senate Republicans refused to consider President Barack Obama’s nomination of Judge Merrick Garland.
“We were hoping we’d be looking forward to a progressive majority on the Supreme Court. After the election results, there is a new reality,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.
The Supreme Court already is set to consider a case involving a transgender teen who wants to use the boys’ bathroom at his Virginia high school. When the federal appeals court in Richmond ruled in student Gavin Grimm’s favor this year, it relied on a determination by the U.S. Education Department that federal law prohibiting sex discrimination in education also applies to gender identity.
The new administration could withdraw the department’s guidance, which could cause the justices to return the case to the lower courts to reach their own decision about whether the law requires schools to allow students to use bathrooms and locker rooms based on their gender identity.
“It is possible, maybe even likely, that if the first question went away, then the court would send case back to the 4th circuit” in Richmond, said Steven Shapiro, legal director of the American Civil Liberties Union, which represents Grimm.
Trump already has pledged to undo Obama’s plan to shield millions of people living in the country without documentation from deportation and to make them eligible for work permits. The Supreme Court, down to eight members after Justice Antonin Scalia’s death in February, split 4 to 4 in June over the plan. The tie vote effectively killed the plan for Obama’s presidency because lower federal courts had previously blocked it.
But the issue remains a live one in the legal system, and supporters of the Obama plan had hoped that a new Clinton administration would press forward.
Now, though, all Trump has to do is rescind the Obama team’s actions, which would leave the courts with nothing to decide.
A similar fate may be in store for the current administration’s efforts to get cost-free birth control to women who are covered by health plans from religiously-affiliated educational and charitable organizations. The justices issued an unusual order in the spring that directed lower courts across the country to seek a compromise to end the legal dispute. The groups already can opt out of paying for contraception, but they say that option leaves them complicit in providing government-approved contraceptives to women covered by their plans.
The new administration could be more willing to meet the groups’ demands, which would end the controversy.
Women’s contraceptives are among a range of preventive services that the Obama health overhaul requires employers to cover in their health plans. All of that now is at risk, since Trump has called for repeal of the health care law.
Obama’s Clean Power Plan, calling for cuts in carbon emissions from coal-burning power plants, also could be rolled back once Trump is in office.
The federal appeals court in Washington, D.C., is considering a challenge by two-dozen mostly Republican-led states that say Obama overstepped his authority. The Trump team could seek to undo the rules put in place by the Environmental Protection Agency and it could seek a delay in the litigation while doing so, said Sean Donahue, a lawyer for the Environmental Defense Fund. Trump’s EPA would have to propose its own rules, which allow for public comment and legal challenges from those who object, Donahue said.
Environmental groups effectively fought rules that they said eased pollution limits during George W. Bush’s presidency.
As some issues pushed by Obama recede in importance, others that have been important to conservatives may get renewed interest at the court. Among those are efforts to impose new restrictions on public-sector labor unions and to strike down more campaign-finance limits, including the ban on unlimited contributions to political parties.
Pope Francis recently voiced support for Mexican bishops and citizens opposing the government’s push to legalize same-sex marriage.
At his weekly Sunday blessing, Francis said he willingly joined their protest “in favor of family and life, which in these times require special pastoral and cultural attention around the world.”
Francis has opposed gay marriage and has railed against “gender ideology,” particularly as taught in schools.
But he rarely intervenes publicly in national debates, preferring to let local bishops take the lead.
Over the weekend, tens of thousands of people marched through Mexico City o in opposition to President Enrique Pena Nieto’s push to legalize same-sex marriage.
Organizers of the National Front for the Family estimated at least 215,000 people participated, and while that number could not be immediately confirmed, it was clearly one of the largest protest marches in Mexico in recent years.
Dressed mainly in white and carrying white balloons, the marchers held banners warning against same-sex marriage and demanding parents’ right to control sex education in schools.
“We are not against anybody’s (sexual) identity,” said Abraham Ledesma, an evangelical pastor who traveled from the border city of Reynosa, across the border from McAllen, Texas, to participate in Saturday’s march. “What we are against is the government imposition … of trying to impose gender ideology in education. As religious leaders, we don’t want to be forced to marry same-sex couples and call it marriage.”
Others carried signs saying “an adopted child deserves a mother and a father.”
On the other side of a police barricade separating the two sides at Mexico’s Independence Monument, a far smaller crowd of same-sex marriage supporters — perhaps a couple hundred — listened to music and speeches.
“They may be the majority,” said Felipe Quiroz, a gay activist and school teacher. “But just because they are the majority, doesn’t mean they can take rights away from minorities. That would lead us to a dark period, to fundamentalism.”
Many saw the massive march as the Roman Catholic church flexing its political muscle in a country where about 80 percent of people identify as nominally Catholic.
In May, Pena Nieto proposed legalizing same-sex marriage nationwide.
It is currently legal only in some places such as Mexico City, the northern state of Coahuila and Quintana Roo state on the Caribbean coast.
But in June, Pena Nieto’s party suffered unprecedented losses in midterm governorship elections, and his party has since put the proposal on the back burner in Congress.
Activists say opposition to same-sex marriage played a role.
“After many months of careful consideration, of prayer and searching my own conscience, I have decided that on Election Day, I will vote for the Republican nominee, Donald Trump,” Ted Cruz wrote on Facebook yesterday.
It was a stunning change of heart and soul for the Texas senator, who traded vicious schoolyard barbs and accusations with the GOP nominee during the presidential primary race. The New York billionaire nicknamed Cruz “Lyin’ Ted,” made disparaging remarks about the physical appearance of Cruz’s wife, and linked his father to the John F. Kennedy assassination.
In return, Cruz, called Trump a “pathological liar” and “utterly amoral.”
Nonetheless, political observers were stunned at the Republican National Convention when Cruz encouraged Republicans to “vote your conscience” rather than for Trump. The comment prompted a chorus of boos from the floor.
Even more perplexing was Cruz’s dramatic about-face yesterday. Cruz said he was following through on a promise to support his party’s presidential nominee, but it’s more likely that he caved into political pressure — along with God’s direction — to back Trump .
Since the convention speech, polls have suggested that Cruz’s popularity was slipping nationally and in Texas — where he could face a primary challenger for re-election in 2018, The Associated Press reported.
His base supported his refusal to back Trump at first, but the mood shifted recently. The vast majority of calls coming into Cruz’s office had turned increasingly negative in recent weeks with many voters urging him to support Trump to prevent a Clinton victory, according to Republicans familiar with the situation. The Republicans spoke on the condition of anonymity because these were internal discussions.
But at the same time, the large staff that worked on Cruz’s presidential bid pushed him not to endorse. Most refused to accept jobs with the Trump campaign when offered following Cruz’s departure from the primary campaign this spring. And as recently as this week, some warned they would not work for Cruz again if he officially endorsed Trump.
Cruz’s decision also comes as he weighs the prospect of a 2020 presidential bid, where Trump’s donors could play an important role.
‘Lucifer in the flesh’
Within the Republican Party, Cruz is probably the only leader who’s despised as deeply as the nominee. His outrageous antics included a 21-hour filibuster on the Senate floor in 2013 during which he recited Dr. Seuss’ Green Eggs and Ham to protest the funding of the Affordable Care Act. Days later, he shut down the entire federal government.
Insiders said the incident demonstrated Cruz’s shameless penchant for self-promotion rather than his strict adherence to far-right ideology. Among GOP colleagues, he’s known as a man who’d “stab” his best friend in the back to gain even the tiniest political advantage.
When fellow GOP hopeful Mike Huckabee staged a press conference last year to lead Kentucky clerk Kim Davis out of jail, Cruz showed up and tried to elbow his way in front of the cameras, only to be pushed away by Huckabee’s bodyguards. Davis, a three-time divorcee and self-acknowledged adulterer, became a religious cause celebre for going to jail rather than sign same-sex marriage licenses.
In a post-retirement interview, former House Speaker John Boehner called Cruz “Lucifer in the flesh.”
“I have Democrat friends and Republican friends. I get along with almost everyone, but I have never worked with a more miserable son of a bitch in my life,” Boehner told an audience at Stanford University a few months after he stepped down as the GOP Congressional leader.
Like Cruz, Trump had to eat a lot of crow over the endorsement.
“I am greatly honored by the endorsement of Sen. Cruz,” Trump said Friday. “We have fought the battle and he was a tough and brilliant opponent. I look forward to working with him for many years to come in order to make America great again.”
It must have been humbling for a man with Trump’s ego to utter such fine words about Cruz.
In May, just hours before ending his presidential campaign, Cruz said things about Trump that seemed to leave no room for reconciliation.
“This man is a pathological liar,” Cruz said. “He doesn’t know the difference between truth and lies. He lies practically every word that comes out of his mouth.”
“Donald will betray his supporters on every issue,” the Texas senator added, while calling Trump “utterly amoral,” “a narcissist,” “a bully,” and “a serial philanderer,” among other things.
Clinton addressed Cruz’s endorsement on social media by posting a tweet from Cruz himself calling on Trump to release his tax returns. The Texas senator released nine years of his returns, while Trump has refused to release any.
Her running mate, Virginia Sen. Tim Kaine, took a dig at Cruz for expressing support despite the personal insults Trump rained down on him during the primaries.
“If somebody said that about my dad, they would never have me as a supporter for anything,” Kaine said as he campaigned in Texas.
But in politics, it’s all in a day’s work.
The Republican Party yesterday adopted an amendment to its draft party platform declaring internet porn a “public health crisis.”
The move has unleashed a new volley of criticism against the GOP for banning the classification of gun violence as a public health issue.
Presumptive Republican presidential nominee Donald Trump has signaled that he’ll accept the party platform, which delegates continue to amend today in Cleveland ahead of next week’s convention.
Porn is just one of the issues on which the party’s religious right has exerted its influence on the draft platform. The platform also opposes President Obama’s executive order allowing transgender people to use restrooms corresponding to their gender identity. In addition, it calls on the Supreme Court to overturn its decision last year legalizing marriage equality and calls for support of so-called “pray-away-the-gay” therapy.
The porn provision, introduced by a member of the fundamentalist Christian group Concerned Women for America, states: “The internet must not become a safe haven for predators. Pornography, with its harmful effects, especially on children, has become a public health crisis that is destroying the life of millions. We encourage states to continue to fight this public menace and pledge our commitment to children’s safety and well-being. We applaud the social networking sites that bar sex offenders from participation. We urge energetic prosecution of child pornography, which closely linked to human trafficking.”
The amendment passed with little debate.
Some critics of the porn amendment cited evidence that few users of porn experience ill effects. Other critics ridiculed the hypocrisy of the porn amendment, given Trump’s well-documented lascivious lifestyle.
The Daily Beast opined, “In the 2016 Twilight Zone, it’s no surprise that the Republican Party is attempting to label a largely victimless non-crime as a public health crisis, while simultaneously facilitating the epidemic of gun violence in America.”
“While there have been exactly zero porn-related deaths reported in the United States this year, there have been more than 28,000 shootings, including 7,239 gun murders so far in 2016, according to the Gun Violence Archive,” reported the Daily Kos. “Those staggering figures include 181 mass shootings and nearly a thousand people shot by police.”
The Guardian reported that at least one delegate blamed the nation’s epidemic of gun violence on marijuana. The British newspaper quoted delegate Noel Irwin Hentschel, who said, “All the mass killings that are taking place — they are young boys from divorced families and they are smoking marijuana.”
Not surprisingly, delegates rejected a proposed amendment to encourage states to legalize cannabis oil for medical reasons. Some of them linked marijuana use to the nation’s heroin epidemic.
The American Medical Association has labeled gun violence a public health crisis and vowed to put its considerable lobbying muscle to work in Congress against the NRA, which has prevented the Centers for Disease Control and Prevention from researching gun-violence.
“Even as America faces a crisis unrivaled in any other developed country, the Congress prohibits the CDC from conducting the very research that would help us … determine how to reduce the high rate of firearm-related deaths and injuries. An epidemiological analysis of gun violence is vital,” said AMA president Dr. Steven J. Stack in a press statement issued last month.
Republican officials rejected an emotional plea on July 11 to back off the GOP’s opposition to same-sex marriage, renewing in the party’s platform an embrace of religious conservative values.
Republicans who gathered to shape their party platform in Cleveland this week also refused to reverse their opposition to bathroom choice for transgender people, exposing a rift with their presumptive presidential nominee — despite internal warnings that social conservative policies on gay rights alienate voters.
“All I ask today is that you include me,” said Rachel Huff, a Republican delegate from Washington, D.C., who is openly gay.
“If our party wants a future … we must evolve,” she said, her voice cracking with emotion.
Asked to respond to Huff, Oklahoma Gov. Mary Fallin later explained that opposition to same-sex marriage has “been the longtime tradition of the Republican Party.”
“She’s still welcome in the party. Everyone is,” Fallin said.
The debate comes as anxious conservatives try influence the direction of a party facing deep uncertainty about Trump’s positions on social issues.
Delegates will adopt an updated set of policy prescriptions — known as the party platform — when the Republican National Convention begins next week. Delegates began the process of updating the 62-page document this week. Changes adopted on July 11 signaled renewed support for religious conservative values.
Where Trump stands
The New York billionaire has been reluctant to embrace social conservative positions in some cases, particularly as Republicans across the country push for new restrictions on bathroom access for transgender people.
Trump, who claims support from the gay community, invited transgender celebrity Caitlyn Jenner — who is scheduled to attend GOP convention activities — to use whichever bathroom in Trump Tower she’d like. He also said North Carolina’s so-called “bathroom law,” which directs transgender people to use the bathroom that matches the gender on their birth certificates, has caused unnecessary strife.
Yet Republicans on July 11 let stand language that attacks the Obama administration for directing schools to allow transgender students to use restrooms and other facilities that match their gender identities. “Their edict to the states concerning restrooms, locker rooms and other facilities is at once illegal, dangerous and ignores privacy issues. We salute the several states which have filed suit against it,” reads the platform.
Delegates also changed language that offers a warning to children of same-sex parents: “Children raised in a traditional two-parent household tend to be physically and emotionally healthier, less likely to sue drugs and alcohol, engage in crime or become pregnant outside of marriage.”
Annie Dickerson, a Republican delegate from New York, said the change relied upon “outrageous, horrible evidence” and represented “another poke in the eye to the gay community.”
“Stop repelling gays for God’s sake,” she declared.
Trump opposes same-sex marriage, but often avoids discussing conservative social issues on the campaign trail. Facing the possibility of a delegate rebellion at the convention next week, his campaign has been taking a hands-off approach to the platform debate.
Wyoming Sen. John Barrasso, who led the platform committee, said he was given Trump’s blessing during a private meeting last week in Washington.
“I’ve asked him to embrace the platform and I believe he will,” Barrasso said of Trump.
Jeff Nichols, sitting by the beach, was surprised to notice a curious calm amid the usually anxiety-ridden premiere experience at the Cannes Film Festival.
His film, Loving, is about Richard and Mildred Loving, the Virginia couple whose biracial marriage in 1958 led to a landmark Supreme Court decision on marriage equality.
“It’s not my story,” said the writer-director, whose previous films, including the Mississippi River coming-of-age tale Mud and the science-fiction thriller Midnight Special were original creations. “It’s their story.”
Loving, starring Joel Edgerton and Ruth Negga, is told straightforwardly and simply. Although it has the context of a civil rights drama, it’s a portrait of a humble, unassuming love so steadfast that it eventually toppled one of the most odious legal remnants of slavery-era America — the ban against interracial marriages.
Without the standard Hollywood histrionics, the film patiently accumulates considerable force before finally overwhelming the viewer.
“No one moment adds up to the whole. But if you put them all together, hopefully, the weight of it gains this emotional density,” said Nichols. “Part of the cruelty of what was happening to them was time. Time was being taken away from them.”
The Lovings didn’t seek the spotlight, but their efforts to return home after being exiled from Virginia eventually led to the 1967 Supreme Court ruling of Loving vs. Virginia — a decision cited in the high court’s 2015 ruling on same-sex marriage.
Nichols and Edgerton believe the film has obvious significance at time when religious liberty laws and bathroom battles are being fought in the U.S.
“It’s kind of shameful to watch and look back and think 50 years ago that that was happening and yet it’s still very much relevant today,” says Edgerton. “Things are changing, obviously, but it’s weird to think we’ll look back in 20, 30 years’ time and say that law (gay marriage) changed in 2015.”
Of the many films in Cannes, Loving, which Focus Features will release during the heart of awards season in November, is among the most likely to garner significant attention from both moviegoers and the Academy Awards. The performances of Negga and Edgerton have already been widely hailed.
“This is the most important film I’ve made and it’s one of the most important films in history, I think,” Negga told reporters in Cannes. The Irish-Ethiopian actress — the first Nichols auditioned for the role — pursued the part fervently. “There was no alternative, really. I just really had to play her.”
Both actors drew from the famous images of the couple, who were photographed by Life magazine’s Grey Villet (Michael Shannon in the film) in 1966. The photographs captured their sweet, almost teenage-like manner together. In one, Richard — a buzz-cut blond country boy — lies with his head in Mildred’s lap while watching TV.
Nancy Buirski’s 2011 documentary The Loving Story was also a major inspiration.
“The court case is fascinating, but I just wanted to hang out in that documentary footage more,” says Nichols. “I wanted to go around the edges of it. I wanted to go around the corner of it.”
Avoiding inflated dramatics, Nichols and his cast sought to stay true to the Lovings, who effected change just by being.
“To me, it’s like this series of checkmates. It tends to move and be shut down. Move and be shut down. Have a voice and be stifled,” says Edgerton. “Finally when the Supreme Court decision releases that weight, it’s quite an overwhelming feeling. It’s a triumphant feeling, but when Richard proposed in the field, that should have been their right and freedom at that time.”
Richard Loving died in 1975, the victim of a drunk driver, and Mildred Loving died in 2008.
Loving may be a departure for Nichols in that it’s a true-life tale. But it continues the Arkansas native’s interest in the preservation of family amid elements out of one’s control.
Choosing to make the film, though, was easy enough. When he first shared the trailer of The Loving Story with his wife, she told him if he didn’t make it, she’d divorce him.
“That’s all she wrote. She didn’t sign off or anything,” recalled Nichols, chuckling.
Antonin Scalia, who was considered one of most conservative justices on the U.S. Supreme Court, died Friday night while staying at a hunting resort in the Big Bend area of Texas. The caustic firebrand complained about feeling ill the night before he was found unresponsive in his room.
The cause of death was not immediately known.
Scalia was part of a 5-4 conservative majority — with one of the five, Anthony Kennedy, sometimes voting with liberals on the court. In a tie vote, the lower court opinion prevails.
Scalia’s death leaves a 4–4 split between liberal and conservative justices on the bench, which means many important decisions will be tied. An even split between conservatives and liberals on the Supreme Court will leave nearly an entire year in which many major upcoming decisions, including cases involving abortion, affirmative action and immigration policy, will be resolved by lower courts
After offering his condolences to Scalia’s family and paying tribute to him as a “towering figure,” President Barack Obama vowed to nominate a successor to Scalia “in due time.”
Republican congressional leaders, hoping to win the White House next year, fired back that they would refuse to approve anyone Obama nominates — a ploy in which they are well versed. They insist no nomination should be made until the next president takes office, which is nearly 11 months away.
Sen. Harry Reid, the Senate’s top Democrat, said it would be “unprecedented in recent history” for the court to have a vacancy for so long a time.
The Supreme Court will now become a major issue in this year’s presidential race.
Dozens of federal positions remain unfilled due to Republican obstructionism, including the nomination of Eric Fanning to be the next secretary of the Army. The Senate refuses to approve Fanning due to his sexual orientation. He’s stepped down from his post as acting secretary because of the political turmoil.
Last year, Sen. Marco Rubio, R–Fla., scuttled Obama’s nomination of Judge Darrin Gayles, an out gay black state court judge, to serve on the U.S. District Court for the Southern District of Florida.
Scalia, who was selected in 1986 by President Ronald Reagan, seemed to have a mission to move the court to the right. He was a strict constructionist who adhered to legal“originalism,”which he called “textualism.” In other words, judges had a duty to give the same meaning to the words and concepts as they were understood by the Founding Fathers. Because same-sex marriage was not mentioned in the Constitution, written over 200 years ago, Scalia believed that the issue was not a Constitutional one.
A challenge to a Washington, D.C., gun ban gave Scalia the opportunity to display his devotion to textualism. In a 5–4 decision that split the court’s conservatives and liberals, he wrote that an examination of English and colonial history made it exceedingly clear that the Second Amendment protected Americans’ right to have guns, at the very least in their homes and for self-defense. The dissenters, also claiming fidelity to history, said the amendment was meant to ensure that states could raise militias to confront a too-powerful federal government if necessary.
But Scalia rejected that view. “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct,” Scalia wrote.
Scalia carried his rifle in a case on the New York City subways. Decades later, he taught the Upper West Sider Kagan how to shoot a gun and the two went together on excursions hunting animals.
Scalia was a strong supporter of privacy in cases involving police searches and defendants’ rights. But, a devoted Roman Catholic, he also voted consistently to let states outlaw abortions, to allow a closer relationship between government and religion, to permit executions and to limit lawsuits.
In 2002, however, he surprised SCOTUS observers by opposing the court’s decision to outlaw executing the mentally disabled, despite the church’s rejection of the death penalty. The framers of the Constitution didn’t think capital punishment was unconstitutional and neither did he, he said, adding that judges who follow the philosophy that capital punishment is morally wrong should resign.
A longtime law professor before becoming a judge, Scalia frequently spoke at law schools and to other groups. Later in his tenure, he also spoke at length in on-the-record interviews, often to promote a book.
He betrayed no uncertainty about some of the most contentious legal issues of the day.
“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,” Scalia said during a talk that preceded a book signing at the American Enterprise Institute in 2012.
Scalia was in the court’s majority in the 2000 Bush v. Gore decision, which effectively decided the presidential election for Republican George W. Bush. “Get over it,” Scalia would famously say at speaking engagements in the ensuing years whenever the topic arose.
The justice relished a good fight. In 2004, when an environmental group asked him to step aside from a case involving Vice President Dick Cheney after reports that Scalia and Cheney hunted ducks together, the justice responded with a 21-page memorandum explaining his intention to hear the case. He said “the nation is in deeper trouble than I had imagined,” if people thought a duck-hunting trip could sway his vote.
Two years later, The Boston Herald reported that Scalia employed an obscene hand gesture while leaving a church in response to another question about his impartiality. Scalia penned a scathing letter to the newspaper, taking issue with the characterization. He explained that the gesture —the extended fingers of one hand moving slowly back and forth under the raised chin — was dismissive, not obscene.
“From watching too many episodes of The Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene,” he said.
A smoker of cigarettes and pipes, Scalia enjoyed baseball, poker, hunting and playing the piano. He was an enthusiastic singer at court Christmas parties and other musical gatherings.
Born in New Jersey, he was the only child of an Italian immigrant father who was a professor of Romance languages and a mother who taught elementary school. He attended public schools, graduated first in his class at Georgetown University and won high honors at the Harvard University Law School. He taught law and served in Republican administrations before Reagan made him an appeals court judge in Washington in 1982. Scalia and his wife Maureen had nine children.
Scalia’s impact on the court was muted by his seeming disregard for moderating his views to help build consensus.
The friendship between Scalia and Ginsburg inspired the opera Scalia/Ginsburg by composer Derrick Wang. The two once appeared on stage as extras in a performance art the Washington Opera.
In one aria, the Scalia character rages about justices who see the Constitution evolving with society.
The operatic Scalia fumes: “The justices are blind. How can they spout this? The Constitution says absolutely nothing about this.”
The real-life Scalia certainly agreed.
Alabama Chief Justice Roy Moore yesterday said state probate judges remain under a court order to refuse marriage licenses to gay couples even though a US. Supreme Court decision effectively legalized same-sex marriage more than six months ago.
The outspoken chief justice has said that biblical law trumps constitutional law. He previously tried to block gay marriage from coming to the Deep South state, issued an administrative order saying the Alabama Supreme Court never lifted a March directive to probate judges to refuse licenses to gay couples.
“Until further decision by the Alabama Supreme Court, the existing orders … that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect,” Moore wrote.
But the chief justice stopped short of directly ordering judges to refuse the licenses. He wrote in his order that he was not “at liberty to provide any guidance to Alabama probate judges on the effect of (the Supreme Court ruling) on the existing orders of the Alabama Supreme Court.”
Nonetheless, at least three Alabama counties suspended all marriage license operations — not issuing licenses to anyone— as a result of his order.
The Alabama Supreme Court issued its directive to refuse licenses to gay couples at the request of a conservative group after a federal judge ruled in January 2015 that the state’s gay-marriage ban was illegal. Months later, in June, the U.S. Supreme Court issued a ruling that effectively legalized gay marriage nationwide.
“Yet again, Chief Justice Roy Moore is flagrantly defying the rule of law, and empowering those who wish to stand between same-sex couples and their constitutional right to marry the person they love,” said Human Rights Campaign legal director Sarah Warbelow in a statement to the press. “Regardless of what Roy Moore says, marriage equality is the law of the land. … We urge all of the state’s probate judges to issue licenses to same-sex couples, as is their duty under the law. Moore’s personal opinions are not at issue here. As a judge, he has an obligation to follow the law. If he refuses to do so, he should be removed from office.”
Claiming the Supreme Court did not specifically address Alabama’s ban on same-sex marriage in the historic Obergefell v. Hodges case, Moore justified his position by quoting a state law that says he can “take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state,” according to HRC, the nation’s largest and most influential lobbying group for LGBT equality.
The Alabama court had asked for briefs on how to proceed after the U.S. high court ruling, but never issued any follow-up orders. Moore said he was issuing his latest administrative order because there was “confusion” among probate judges on how to proceed. Moore told the Montgomery Advertiser that he didn’t mean to defy the U.S. Supreme Court as he sought to clarify conflicting orders.
Susan Watson, director of the ACLU of Alabama, said it was Moore who was creating confusion, but she also predicted that his order would have little effect. Watson noted that the same federal judge who initially overturned Alabama’s gay marriage ban also issued an injunction prohibiting probate judges from enforcing the ban.
Most judges in Alabama’s 67 counties are issuing marriage licenses to gay couples, although at least three Alabama counties suspended all marriage license operations yesterday in response to Moore’s order. That is in addition to the judges in nine counties who had already shut down their operations following the U.S. Supreme Court decision.
Alabama Rep. Patricia Todd, D-Birmingham, the only openly gay member of the Alabama Legislature, said it is time for Moore to stop fighting the ruling of the U.S. Supreme Court.
“He’ll be challenged and he’ll lose and he’ll cost the state a lot of money in the process,” Todd said.
University of Alabama School of Law Professor Ronald Krotoszynski agreed.
He said that although it is technically true the state Supreme Court never withdrew its March injunction, “the U.S. Supreme Court plainly overruled it and federal courts would rule against judges who refuse licenses.”
“In light of this reality, ordering the state’s probate judges to refuse to issue marriage licenses to all couples who seek them constitutes an exercise in futility,” Krotoszynski said. “At best, it sows chaos and confusion; at worst, it forces couples to bring federal court litigation in order to exercise a clearly established federal constitutional right.”
Moore has become one of the state’s most outspoken opponents of gay marriage, and he has won praise from some right-wing religious groups for his position.
Washington County Probate Judge Nick Williams said the order has no impact on his county since he stopped issuing marriage certificates altogether in June, but he praised Moore.
“I respect our chief justice greatly,” Williams said. “I think he’s a man of honor and I respect everything he does.”
Montgomery County Probate Judge Steven Reed, one of the first probate judges to issue same-sex marriage licenses in the state, tweeted this statement:
“Judge Moore’s latest charade is just sad & pathetic. My office will ignore him & this.”
Moore’s son Caleb Moore has been arrested three times on drug charges, leading LGBT rights advocates to charge the judge with hypocrisy and failing to minister to his own son while trying to foist his religious views on the public. In 2012, Caleb Moore worked part-time for the anti-gay Foundation For Moral Law, which was founded by his father and is currently headed by his mother Kayla Moore.
Prior to his same-sex marriage opposition, Moore was best known for being removed from office in 2003 after refusing to move a 5,300-pound Ten Commandments monument from the state Supreme Court building. But the Bible Belt state re-elected him to the position in 2012.
The Ten Commandments does not address same-sex marriage.