Roy Moore, the chief justice of the Alabama Supreme Court, is trying to stoke yet another fight with the federal judiciary over marriage equality.
Moore, a Republican with a harsh anti-gay record, was elected to serve as chief justice in 2012 after being removed from that same office in 2003 for defying a federal court ruling on his installation of a Ten Commandments monument in the courthouse rotunda.
Early last year, Moore similarly challenged a federal court’s ruling striking down Alabama’s ban on same-sex marriage, cementing his status as a Religious Right hero and martyr.
It appears that he is not backing down from that fight, as today Moore released an administrative order, provided by the Southern Poverty Law Center, claiming that probate judges must abide by a state law barring same-sex marriage, despite the Supreme Court’s Obergefell ruling.
Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the "existing orders" in API. Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses. This disparity affects the administration of justice in this State.
Yet the fact remains that the administration of justice in the State of Alabama has been adversely affected by the apparent conflict between the decision of the Alabama Supreme Court in API and the decision of the United States Supreme Court in Obergefell.
IT IS ORDERED AND DIRECTED THAT:
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.
As Bryan Lyman of the Montgomery Advertiser pointed out, Alabama’s attorney general directed state agencies to comply with Obergefell, which struck down state bans on same-sex marriage.
Moore hinted that he would issue such an order back in July, when he claimed that states should defy gay marriage because it is “unlawful” and violates “higher law,” much like Nazi decrees. He has also stated that gay marriage is a Satanic plot that will usher in divine punishment and “literally cause the destruction of our country.”
In September, Moore vocally backed Kentucky clerk Kim Davis in her fight to deny marriage licenses to same-sex couples, comparing her to Holocaust victims.
The Foundation for Moral Law, which Moore founded and is currently led by his wife, Kayla Moore, also called on states to defy Obergefell and said it was “determined” to fight the decision in Alabama.
In a statement from his wife in June, which Moore shared on his Facebook page, the group said Obergefell was invalid and illegitimate: “Not only does the U.S. Supreme Court have no legal authority to redefine marriage, but also at least 2 members of the Court’s majority opinion were under a legal duty to recuse and refrain from voting. Their failure to recuse calls into question the validity of this decision.”
Elsewhere, Republican lawmakers in several states are trying to nullify Obergefell.
GOP legislators in Michigan and Tennessee are attempting to pass legislation negating the ruling in their states, and the Spartanburg Herald Journal reported yesterday on two Republican legislators in South Carolina who want to see the state challenge the marriage equality ruling:
Rep. Bill Chumley, R-Woodruff, and Rep. Mike Burns, R-Taylors, pre-filed a bill in the House to define marriage as between one man and one woman. He also aims for his bill to invalidate same-sex marriages in South Carolina. The bill is titled as the South Carolina Natural Marriage Defense Act.
"I represent the people, and the people have shown several times that they are opposed to this, and are in favor of traditional marriage," Chumley said.
The Supreme Court ruling in June legalizing same-sex marriage came down to a 5 to 4 vote, Chumley said. He said the split vote was indicative of the views of all Americans.
"Apparently, those four people believe like we do," he said. "I do believe that something that's a close vote like that sends a message, it's not cut and dry."
An Arizona Republican lawmaker has also filed a bill that would prohibit the state from implementing any executive order or Supreme Court decision.
HB 2024 would forbid the state from using its resources to implement any presidential executive order unless it had been approved by Congress and found to be constitutional. Rep. Mark Finchem, R-Oro Valley, said he crafted it even before President Obama announced on Tuesday he is taking executive action to redefine who is a gun dealer and subject to requirements to do background checks.
But HB 2024 also would extend the same language to decisions of the U.S. Supreme Court. Finchem said that, absent congressional action, there is no reason that Arizona should have to do anything — or use state resources — to comply with court rulings.
In fact, Finchem told Capitol Media Services it’s wrong to even call what comes from the high court a “ruling.” And he derided the idea that the justices created “case law.”
“It’s not law at all,” he said.
“It’s case opinion and past practice, past application,” continued Finchem who got seven other Republicans to sign on as co-sponsors of the measure. And he said that it really is just the opinion of the majority of justices in a given case.
“The court can pass an opinion all day long,” he said. “But until that opinion goes back to Congress and becomes an enactment, and is signed into law, a statute, by the president, it’s not operable.”
One ruling in that category is the decision by the justices that states cannot deny the right to wed to same-sex couples. The net effect was to tell states that if they issue marriage licenses they have to make them available to all couples regardless of sexual orientation.
Finchem said he sees no reason why the justices, on their own, can force that on states. He said civil marriage is essentially a creation of the Internal Revenue Service on the premise the taxing agency needed to know who was entitled to certain benefits.
“If the federal government wants to issue a gay marriage license, they’re free to do that,” Finchem said. “But it’s not a state license.”
More to the point, he said the federal government — and a federal court — cannot force the state to do something when it’s contrary to the state’s own constitution.