Alabama Supreme Court Chief Justice Roy Moore is going to the wall to oppose a ruling from U.S. District Judge Callie Granade ordering the state to impose same-sex “marriage” on its residents, contending in a letter to state judges that she has no constitutional authority to do so.
Granade ruled the state’s definition of marriage as the union of one man and one woman was unconstitutional. Then she refused to extend a stay on the ruling, ordering the state to start imposing the social change on citizens soon, after the 11th Circuit Court of Appeals declined to intervene.
As the state attorney general submitted an emergency request for a stay to the U.S. Supreme Court, Moore was drafting instructions to judges on how to handle a federal judge’s decision that violates the state constitution.
A letter obtained by WND from Moore to his probate judges was resolute.
“Lower federal courts are without authority to impose their own interpretation of federal constitutional law upon the state courts,” it stated. “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.”
He 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.
“The freedom to marry is an ‘unalienable right.’ The Declaration of Independence states: ‘We hold these truths to be self evidence, 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.
Moore appealed to the highest authority.
“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 continued: “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.”
The dispute already had been decided by the state Supreme Court in a ruling for traditional marriage, he noted.
“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.”
On a practical matter, he pointed out that Granade’s orders do not compel state officials to do anything.
“Consequently, the injunction and the stay or the lifting thereof can only apply to the sole defendant, the Alabama attorney general.”
In his legal memo to judges, he said, “The rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.”
“In my estimation, Judge Granade’s orders … have created a ‘situation adverse affecting the administration of justice within the state’ that requires me ‘to take … action for the orderly administration of justice within the state.'”
Even Granade’s order affecting the attorney general and his employees and officers fails, Moore insisted, because the attorney general is part of the executive branch, while the judges are part of the state’s judicial branch.
“No probate judge was a defendant in the cases under discussion except for the Honorable Don Davis who was dismissed with prejudice before issuance of the court’s orders. … under a straightforward application of [court rules] those orders have no effect on the probate judges of Alabama.”
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.
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.
Alabama’s governor, Robert 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.”
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 soon will be faced with this very argument – 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.
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 also noted that in the American judicial system, an incorrect decision is subject to appeal.
When the issue is taken up by the U.S. Supreme Court in a few weeks, he said, Moore’s position likely will get at least four votes.
But he said a government official should recognize an obligation to follow procedures, including an order pending appeal.