Alabama Supreme Court Chief Justice Roy Moore on Sunday issued a rare weekend order to the state’s judiciary – banning officials from recognizing same-sex “marriage.” The order was made even more rare by the fact that it conflicts directly with a ruling from a U.S. district judge who is demanding the state recognize same-sex “marriage” starting on Monday.
“Effectively immediately, no probate judge of the state of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or [Paragraph] 30-1-19, Ala. Code 1975,” said his order, which was dispatched to all state probate judges as well as circuit and district judges Sunday night.
A copy was obtained by WND.
The U.S. Supreme Court on Monday declined to get involved in the dispute at this level, leaving Moore’s order to state judges in conflict with the federal district judge’s order.
Shortly later, several licenses were issued by at least one court in Alabama for same-sex duos.
The fight is over an order from U.S. District Judge Callie Granade, who told the state to recognize the alternative “marriages” starting Monday. But Moore has cited court precedent that federal district judges cannot impose their rulings on state courts, who, he said, have an equal right to interpret the U.S. Constitution.
He determined that the U.S. Supreme Court is the only court that can overrule the state courts, who had concluded in the fight over marriage that the state constitution, which specifically forbids the recognition of same-sex “marriage,” is valid.
That determination came before the federal judge intervened in the state’s issue.
In his order, Moore noted that he has a responsibility to manage the judicial department’s affairs, and, as he wrote in a letter and memorandum on Feb. 2, “Probate judges of Alabama are not bound by the orders of January 23, 2015, and January 28, 2015, in the case of Searcy v. Strange…”
“Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the aforementioned orders bind only the Alabama attorney general and do not bind the probate judges of Alabama who, as members of the judicial branch, neither act as agents or employees of the attorney general nor in concert or participation with him…”
The attorney general, Moore noted, has no authority to issue marriage licenses.
“Should any probate judge of this state fail to follow the Constitution and the statutes of Alabama as stated, it would be the responsibility of the chief executive officer of the state of Alabama, Gov. Robert Bentley, in whom the Constitution vests ‘the supreme executive power of this state,’ … to ensure the execution of the law.”
In fact, officials with Liberty Counsel have announced their representation of Probate Judge Nick Williams and other Alabama probate judges who plan to refuse to issue those documents.
“At this time, no Alabama probate judge is bound by Judge Granade’s order,” said Mat Staver, chairman of Liberty Counsel, in a statement on Friday. “This sole federal judge does not have jurisdiction to order all state probate judges to issue marriage licenses to same-sex couples.”
He’s not alone in that opinion. WND reported just days ago when Moore wrote a letter to probate judges, who are the ones in Alabama who issue marriage licenses.
“Lower federal courts are without authority to impose their own interpretation of federal constitutional law upon the state courts,” his letter said. “Furthermore, they have absolutely no legitimate authority to compel state courts to redefine marriage to include persons of the same sex. Not only is the Mobile federal court acting without constitutional authority, but it is doing so in a manner inconsistent with the Eleventh Amendment to the United States Constitution.”
Moore said his probate judges should “uphold and support the Alabama Constitution and the Constitution of the United States to the best of your ability, So Help You God!”
Moore told WND the state would be “vigorous” in defending its constitution.
And he said his arguments focus heavily on dual sovereignty – the concept of a number of sovereign states coalescing to create a sovereign nation. The arguments include spelling out who has the responsibility for making what decisions.
“The right to enter into the institution of marriage, namely a union between one man and one woman, is established in history and law as a fundamental right. Although not enumerated in the Constitution, that right is retained by the people under the Ninth Amendment: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,'” he wrote.
In support of his position, Staver said Granade is situated in the Southern District of Alabama, and her territorial jurisdiction does not extend to probate judges in the Middle and Northern Districts.
Further, he said, Granada has no personal jurisdiction over Southern District probate judges because they were not parties to her current cases.
Third, he said, Attorney General Luther Strange, to whom Granade directed her order to perform same-sex “marriages,” is a member of the executive branch and does not perform marriages while probate judges are members of the judicial branch.
Finally, Staver noted, as members of the state judicial branch, probate judges are not bound by the decisions of the lower federal courts, as confirmed by multiple Alabama and U.S. Supreme Court cases.
Staver points out that the Alabama code actually does not mandate that a judge of probate perform marriage for anyone.
“No two people seeking a marriage ceremony have the right to demand that the ceremony be performed by a particular judge at a particular time and place. Any number of accommodations can be made that would give couples (whether same-sex or opposite-sex) access to a judge, while also protecting an individual judge’s rights of conscience and free speech,” Staver added.
Moore’s letter to the judges was accompanied by a legal memorandum explaining many of the same issues.
And WND has reported Bentley, 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.”
Granade previously ruled the state’s constitutional provision that same-sex “marriages” are not recognized was unconstitutional. Then she refused to extend a stay on the ruling, ordering the state to start imposing the social change on citizens, after the 11th Circuit Court of Appeals declined to intervene.
Explained Moore, “The freedom to marry is an ‘unalienable right.’ The Declaration of Independence states: ‘We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness …’ Even Judge Granade’s order, quoting Loving v. Virginia, 388 U.S. 1,11(1967), acknowledges that ‘the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men’ and women.’ No court or other human authority should pretend to redefine that right. Such an enterprise would disregard the Bill of Rights contained in the United States Constitution as well as the Organic Law of our country,” Moore said.
He continued, “Marriage has long been recognized as a divine institution ordained of God. According to the United States Supreme Court, the basic foundation of marriage and family upon which our country rests is ‘the union for life of one man and one woman in the holy estate of matrimony.'”
He said: “Under the principle of ‘dual sovereignty,’ the authority of state courts to interpret the federal Constitution is equal to that of the lower federal courts for the simple reason that both state and federal courts are equally sworn to uphold the United States Constitution.
“While my disagreement with Judge Granade’s orders in the cases attacking Alabama marriage has been criticized as ‘religious,’ ‘defiant,’ and ‘unethical,’ my actions are entirely consistent with my responsibility as chief justice. … Interference with the right of state courts to make independent judgments based on their own view of the U.S. Constitution is a violation of state sovereignty.”
WND reported when Moore, in an interview, said the state court system already had reviewed the claims in the case and rejected them before Granade stepped in.
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.