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.