Judge Roy Moore, the fiercely independent chief justice of the Alabama Supreme Court, says he was only doing his duty when he issued a letter to his state’s court officials advising that they are not bound by a federal judge’s decision to impose same-sex “marriage” in his state.
Moore, in an interview Wednesday with WND, said the state court system already had reviewed the claims in the case and rejected them before District Judge Callie Granade stepped into the dispute and issued a ruling striking down the Alabama Sanctity of Marriage Amendment.
But Moore said court precedents from throughout the state’s history make it clear that only the U.S. Supreme Court can overturn the highest court decision in the state system, so Granade’s decision, and a temporarily delayed order implementing it, was out of line.
Moore’s willingness to fight the federal court system when he believes it has erred dates back more than a decade to a disagreement over a monument citing the Ten Commandments as the foundation of American law.
He told WND perhaps it was “providential” that the case has emerged just as the U.S. Supreme Court is preparing to hear arguments over the constitutionality of ordering same-sex “marriage” in states where voters oppose it.
Alabama’s governor, Robert Bentley, has expressed agreement with Moore.
He said in a statement: “The people of Alabama elected me to uphold our state Constitution, and when I took the oath of office last week, that is what I promised to do. The people of Alabama voted in a constitutional amendment to define marriage as being between man and woman. As governor, I must uphold the Constitution. I am disappointed in Friday’s ruling, and I will continue to oppose this ruling. The federal government must not infringe on the rights of states.”
Officials in dozens of states have submitted to federal rulings on same-sex marriage, even though their voters have passed amendments defining marriage as the union of one man and one woman.
The U.S. Supreme Court earlier refused to listen to a challenge to one such order, allowing same-sex marriage to be imposed in a dozen more states. It now is preparing to hear arguments in an appellate decision that affirmed states’ right to define marriage.
That ruling from the 6th U.S. Circuit Court of Appeals stunningly affirmed the rights of voters in four states – Kentucky, Michigan, Ohio and Tennessee – to define marriage as the union of one man and one woman.
The appeals opinion said: “Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us – just two of us in truth – to make such a vital policy call for the thirty-two million citizens who live within the four states of the Sixth Circuit.”
The Supreme Court justices will be faced with arguments, raised by Moore and others, that “nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage.”
Also cited is the 10th Amendment, which reserves to the people and the states all authority not specifically given to the federal government.
In that light, Moore said, Alabama laws have always recognized the biblical admonition: “But from the beginning of the creation God made them male and female. For this cause shall a man leave father and mother, and cleave to his wife.'”
Moore, in a letter explaining his position to the governor, noted: “Even the United States Supreme Court has repeatedly recognized that the basic foundation of marriage and family upon which our country rests is ‘the union for life of one man and one women in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.'”
The court comment is found in a 1908 case, he pointed out.
“The Supreme Court feeds off of this,” he said. “Maybe it is providential that this came up while I’m here.”
Moore said he took inspiration from Thomas Jefferson’s writings, which warned of the expansion of federal government power.
Jefferson said: “Take together the decisions of the federal court, the doctrines of the president, and the misconstructions of the constitutional compact, acted on by the legislature of the federal branch, and it is but too evident, that the three ruling branches of that department are in combination to strip their colleagues, the state authorities, of the powers reserved to them, and to exercise themselves, all functions foreign and domestic.”
Moore said the issuance of marriage licenses to same-sex duos would be in defiance of state law and the Constitution.
On Wednesday, he told WND the facts were simple: The case was filed in state court and resolved there against the plaintiffs, and the federal court decision creates a conflict of opinions.
His job, he said, is to direct state officials how to act in such a case.
He told WND that state precedent is that state judges are not bound by the opinion of a federal judge, only the U.S. Supreme Court.
Moore said he agreed with California Supreme Court Justice Marvin Baxter’s dissent from that court’s creation of same-sex marriage in 2008.
Baxter warned the court’s decision to overturn a “deeprooted” standard for marriage opened a Pandora’s box.
“Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?”
“I’ve said the very same thing. Incest is next. Or polygamy,” Moore said.
Moore quoted from two 2008 state court precedents: “This court is not bound by decisions of the U.S. courts of appeal or the U.S. district courts,” and, “We’re not bound by the decisions of the 11th Circuit.”
Moore was elected chief justice of the Alabama Supreme Court in 2001 but was removed after a couple of years for his decision to set up a Ten Commandments memorial at the court. He was re-elected overwhelmingly by voters in 2012.
One commentator noted some GOP voters will see him as a “bulwark” against judicial tyranny.
Eugene Volokh, the Gary T. Schwartz professor of law at UCLA and author at the Volokh Conspiracy legal blog, told WND that Moore’s arguments are “perfectly plausible.”
But he said it’s also accepted in the American judicial system to abide by the outline of the judicial system – that is, an incorrect decision is subject to appeal.
Moore’s perspective, he said, almost certainly will get some votes when the issue is taken up by the U.S. Supreme Court in a few weeks. It will, he said, “quite likely get at least four votes.”
But he said if one is a government official, there should be recognized an obligation to follow the procedures, including following such an order pending appeal.
“So long as there is a decision out there, if you are a government official, you ought to follow that decision,” he told WND.
He said the issue is not like a ruling that would affirm slavery; it’s just about same-sex marriage.
“It’s hard to see that as the same atrocious invasion of human liberty,” he said.
Meanwhile, a personal cost apparently looms for Moore for standing up for his state’s constitution. The far-left activists at the Southern Poverty Law Center, which was identified by a convicted domestic terrorist as the source of information for his attack on the Family Research Council headquarters in Washington, filed an ethics complaint against Moore.