Alabama Supreme Court Chief Justice Roy Moore told WND on Monday he’s not backing away from the state court versus federal court fight over marriage, because he believes, constitutionally, the states are allowed to define the institution.
And it will remain that way unless the U.S. Supreme Court issues a ruling on the merits, he contends.
Confusion abounds after the high court on Monday refused to extend a stay to a federal judge’s order that the state of Alabama recognize same-sex marriage.
The decision, which only affected the extension of a stay order and did not address the merits of the argument, drew opposition even from inside the Supreme Court.
Justice Clarence Thomas issued a rare dissent, stating: “In this case, the court refuses even to grant a temporary stay when it will resolve the issue at hand in several months. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the court resolves this important constitutional question.”
Thomas, who was joined by Justice Antonin Scalia, pointed out that the justices essentially were admitting what they would decide, even before arguments, expected in April, are heard in a pending dispute over same-sex marriage.
In that case, the 6th Circuit Court of Appeals affirmed measures in four states defining marriage as the union of one man and one woman. Other appeals courts had struck down traditional-marriage measures, setting up a conflict.
Thomas said the Monday decision “may well be seen as a signal of the court’s intended resolution.”
Moore sent a memoradum to the state’s 68 probate judges and others in the state judiciary that said they are not bound, according to federal court precedent, to follow the federal judge’s order. Moore argued the state constitution excludes same-sex duos from marriage, and Alabama Gov. Robert Bentley would be the executive who would decide if penalties should be applied to anyone who violates the state constitution.
Several lower-court judges were issuing marriage licenses to same-sex couples Monday.
In just a handful of states, voters or lawmakers have approved homosexual marriage. In dozens more, however, federal judges have imposed it and overridden the 10th Amendment principle that powers not delegated to the federal government – marriage isn’t mentioned in the Constitution – are reserved to the states.
WND also did not get an immediate answer from the governor’s office on whether there would be any response to probate judges in the state who issue marriage licenses to same-sex couples.
A number of judges reportedly were defying the federal court order, and Liberty Counsel confirmed Monday it is standing with probate judges who are following Moore’s constitutional guidance.
Moore told them in a highly unusual order Sunday: “Effective 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 … the Alabama Constitution.”
Alabama Attorney General Luther Strange had asked the high court to stay the decision until it rules on the matter this summer.
Mat Staver, founder Liberty Counsel, said: “The statement over the weekend from Chief Justice Roy S. Moore is boosting the ranks of probate judges who are refusing to issue same-sex marriage licenses. Liberty Counsel agrees with Chief Justice Moore. The Alabama probate judges are not bound by an opinion of a single federal judge. This sole federal judge does not have jurisdiction to order all state probate judges to issue marriage licenses to same-sex couples.
“Liberty Counsel will defend those judges who disregard her lawless order.”
Moore told WND that confusion will reign in the state because of Monday’s decision until a final ruling from the Supreme Court.
“They did not rule on the merits. Nobody interpreted the Constitution,” he said.
His memo to the state’s probate judges, supported by legal citations, said a U.S. district judge’s decision “has no authority over probate judges.”
For one thing, previous court precedent has made that clear, he said.
Further, the probate judges were not part of the case before Granade, so she would not have authority to bind them to her decision, he has argued, citing the federal court’s rules of procedure.
“I’ve given my guidance [to state judiciary members],” he said. “The law is very clear.”
“Under the concept of dual sovereignty, no federal judge … can demand state a state should follow their ruling. They’re free [to order that in their case] but outside their case, it’s not binding.”
Moore has said throughout the dispute that his job is to operate the Alabama judiciary, and that’s the reason for his legal explanation and orders to judges.
That same-sex weddings were taking place in Alabama despite the constitutional and legal questions wasn’t even a precedent. Same-sex ceremonies were taking place in California and Colorado at a time when there was a constitutional ban.
Moore has explained that the case already was in the state courts, which decided against homosexual marriage. And said there is a 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.
In his order, Moore noted he has a responsibility to manage the judicial department’s affairs, and, as he wrote in a letter and memorandum 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.”
Moore had explained: “Lower federal courts are without authority to impose their own interpretation of federal constitutional law upon the state courts. “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!”
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.
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.’
“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.”