Who has the backbone to stand with Roy Moore?

By Tom Ford III, Ph.D.

Chief Justice Roy Moore sparked uproar across the nation Wednesday with an Administrative Order stating that Alabama's Sanctity of Marriage Amendment and the Alabama Supreme Court's order from March 2015 upholding that amendment remain in full force and effect until the Alabama Supreme Court decides further.

Of course, the Southern Poverty Law Center sounded off with a call for Moore's removal. The Human Rights Campaign offered scathing criticism. The media embarked once again on a crusade to brainwash the nation into believing that the will of the federal judiciary is always the "supreme law of the land" and to intimidate the rest of us into silence by crucifying any who dare offer dissent.

We have all seen the name-calling and legal-sounding statements employed to dismiss Chief Justice Moore's position, but is it possible that he has the law on his side? And, is it imperative for the preservation of our constitutional republic that officials from across this nation join him?

On March 3, 2015, the Alabama Supreme Court ordered that probate judges have a ministerial duty not to issue any marriage licenses contrary to Alabama's Sanctity of Marriage Amendment. After the Supreme Court of the United States issued its opinion in Obergefell v. Hodges, the Alabama Supreme Court itself admitted that Obergefell settled nothing in Alabama and requested briefs to comment on their "existing orders."

Is the Alabama Supreme Court confused about proper procedure? Certainly not.

Neither are the United States Court of Appeals for the 8th Circuit and the Federal District Court for the District of Kansas. Both of these federal courts stated that the Obergefell opinion "only invalidated laws in Michigan, Kentucky, Ohio, and Tennessee" and did nothing to invalidate laws in their districts. In the same vein, Obergefell did not strike down the provisions of the Alabama Constitution.

But, even if Alabama were, in fact, a party to the case, there remains the federal principle of constitutional supremacy as opposed to judicial supremacy. The often misinterpreted Supremacy Clause states that: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land." Thus, the Constitution is the final arbiter of law, not the judiciary. Adherence to the Supremacy Clause forces us to negate any opinion from the Supreme Court that defies the Constitution by both content and jurisdiction. The content of an opinion from a federal court must exclude marriage and family policy – a purview of the states according to Article I and Amendment 10. The jurisdiction of a federal court is limited to judgments on laws made within the bounds of the Constitution (Article III) and does not extend into the legislative and state jurisdictions of crafting public policy and changing state laws (Article I and Article IV). Obergefell v. Hodges was one such unconstitutional opinion and should be rejected as illegitimate.

Judge Roy Moore's moral strength and legal brilliance shine through as he tells the story of his Ten Commandments monument battle: "So Help Me God: The Ten Commandments, Judicial Tyranny, and the Battle for Religious Freedom"

This sentiment was recently championed by over 60 legal scholars and attorneys who encouraged constitutional resistance to Obergefell and pointed out that:

"The Court's majority opinion eschewed reliance on the text, logic, structure, or original understanding of the Constitution, as well as the Court's own interpretative doctrines and precedents, and supplied no compelling reasoning to show why it is unjustified for the laws of the states to sustain marriage as it has been understood for millennia as the union of husband and wife."

Some have argued that the order of Judge Callie Granade in Alabama's Southern District purporting to overturn Alabama's ban on same-sex marriage retains full force and effect after Obergefell. Simply put, the Alabama Supreme Court effectively clarified the equally sovereign relationship between the State Court and the Federal District Court in its March 3 order when the justices rendered Judge Granade's order ineffective. And, as previously explained, Obergefell did not change anything. In a recent statement, Montgomery, Alabama, attorney Jay Hinton summarized: "No Federal Circuit and certainly no District Court precedent are binding on State Courts."

Dr. Herbert W. Titus, a nationally respected constitutional law professor, summarized:

"All that the chief justice has done is to remind the probate judges that Obergefell does not erase the legal definition of marriage set forth in state law and the state constitution. … The chief justice has simply affirmed the indisputable fact that the Obergefell decision applies only to the four state parties in the case. Alabama has not had her day in court, except at the federal district and court of appeals level. Those federal court decisions are not binding on the State Supreme Court."

Whether or not we agree with the position or action of Chief Justice Roy Moore, we have no warrant to dismiss him. It is entirely possible – and completely correct – to assert that he has the law on his side. At least, conservatives should forget petty disagreements and recognize that Moore is one of the few elected officials with backbone to stand up for the truth about marriage and the rule of law.

Even Howard Wasserman, professor at Florida International University College of Law, who disagrees with Moore wrote: "[The Chief Justice's Order] may be unwise, obnoxious, and driven by Moore's pathological intransigence. There is nothing unlawful about it."

Governors, attorneys general, judges at all levels and legislators face a moment of grave decision – a moment that will decide the future of this nation. Will we bow to the intimidating voices of the left and lay the time-tested principles of law and federalism on the altars of fear, confusion, or judicial supremacy? Or will we follow the line of duty before God and this nation, stand on the plain text of the law and say "enough" to those who seek to destroy the laws, the heart and the soul of this nation?

Tom Ford III, Ph.D., is with Sanctity of Marriage Alabama, a grass-roots organization that mobilizes Alabama citizens to stand with God's Word and the law of our land for marriage between one man and one woman. Follow them on their Facebook page.