Alabama Supreme Court Chief Justice Roy Moore, who on Wednesday reminded the probate judges in his state to follow the Alabama Constitution’s definition of marriage as the union of one man and one woman until his court issues a ruling on the dispute, sees the conflict as a good teaching moment for Americans.
Moore spoke to WND after his order, which said, “Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court 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.”
He declined to comment on issues regarding marriage licenses and the U.S. Supreme Court’s decision last summer creating same-sex marriage.
But he said it’s a good time for Americans to learn a little bit more about the court systems and the state and federal institutions.
His order brought into sharp focus the conflict over the proper role of government regarding marriage. Marriage nowhere is mentioned in the Constitution, which provides that all such topics be reserved to the states.
Moore said his order simply reminded probate judges in Alabama, the only ones authorized in the state to issue marriage licenses, of an existing order in the case. That order is to be followed until a final decision is announced by the Alabama Supreme Court.
He said state courts have every right and authority to rule on constitutional law, as in Alabama when the state Supreme Court released a lengthy opinion affirming the constitutionality of the state’s constitutional amendment defining marriage as the union of one man and one woman.
The U.S. Supreme Court’s decision came after that, but instead of canceling existing cases based on the opinion, Alabama’s highest court announced it would accept briefs on its implementation in Alabama.
He said the probate judges were reminded of the existing order because some were not issuing any marriage licenses and some were violating the state constitution.
“There was a lot of confusion in the state,” he told WND. “That confusion results in disorder. As the administrative head of the judicial [branch in Alabama], my duty is to clarify. All I’m saying in this order, is that until there is a further decision by the [state] Supreme Court, the existing orders remain in full force.”
He pointed out in that order that the U.S. 8th Circuit Court of Appeals “recently ruled that Obergefell did not directly invalidate the marriage laws of states under its jurisdiction.” And he explained, “The United States District Court for the District of Kansas was even more explicit: ‘While Obergefell is clearly controlling Supreme Court precedent, it did not directly strike down the provisions of the Kansas Constitution and statutes that bar the issuance of same-sex marriage licenses.'”
Moore noted the appeals court ruling supports the concept that a decision affects only cases before the court and does not affect the “rights of strangers to those proceedings.”
“Whether or not the Alabama Supreme Court will apply the reasoning of the United States Court of Appeals for the Eighth Circuit, the United States District Court for the District of Kansas, or some other legal analysis is yet to be determined, ” he said.
He said it’s important to remember that the U.S. Supreme Court doesn’t make law, the legislatures of the states and Congress do.
Moore noted the job of the courts is to apply the law to individual cases, which the Supreme Court did for cases in the 6th U.S. Circuit Court of Appeals in creating same-sex marriage.
And he said a “constitutional ruling by a state Supreme Court is just as binding as the federal court circuit in which the state courts are situated.”
“It’s a wonderful time to teach the people of our country about states’ rights,” he said, citing a “misunderstanding of federalism.”
“States do have powers.”