Roy Moore finds himself on the wrong side of an argument, again.

Photographer: Matthew Cavanaugh/Getty Images

Alabama's Renegade Judge Defies Gay Marriage Order

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Maybe you remember Roy Moore? He’s the chief justice of Alabama who, in 2001, ordered the erection of a 5,200 pound granite copy of the Ten Commandments in the rotunda of the Alabama Supreme Court -- then refused to remove it in 2003 after a federal court ruled it unconstitutional. On Tuesday, while the Northeast was covered in snow, Moore was at it again. He sent the Alabama governor a letter asserting that Alabama judges aren’t bound by the federal district court decision requiring issuance of marriage licenses to same-sex couples in the state.

Moore’s idiosyncratic view isn’t completely crazy -- but it is dangerously wrong. And it’s especially important to show why it’s wrong, because Southern states’ rights fundamentalism has a long and bad history of challenging federal constitutional decisions in the context of segregation.

Moore himself is a one-man proof of my contention last week that judicial elections are idiotic. After his last episode of resisting federal-court orders stating that he had violated the establishment clause, Moore was actually removed from his position as chief justice by a special Alabama court that investigates judicial malfeasance.

After that, Moore twice ran for governor of Alabama, hoping to capitalize on his notoriety. When he failed to make it out of the Republican primary either time, Moore hit on the idea of running for chief justice again -- and in 2012 he was re-elected to the post from which he had been removed. He’s now sitting chief justice of Alabama. Anyone care to tell me again why judicial elections are so great?

The last time he resisted a federal court order, Moore made himself a kind of martyr for the Ten Commandments: He’d ordered the monument (I almost wrote “idol”) put up unilaterally, and he did everything short of standing in the way of the bulldozer sent to remove it.

This time, Moore has again used religion as part of his bid for publicity. In his public letter to Governor Robert Bentley, he includes plenty of rhetorical condemnation of same-sex marriage. “The laws of this state,” he writes, “have always recognized the Biblical admonition stated by our Lord.” Then he quotes Mark 10:6-9, verses that refer to the union of man and wife as one flesh.

Turning to the laws of man rather than the laws of God, Moore calls the decisions of the federal courts requiring same-sex marriage “tyranny.” He quotes a letter Thomas Jefferson wrote in 1825 decrying the rising powers of the federal courts. He endorses a statement by the Alabama Probate Judges Association, which, he asserts, has “advised” Alabama probate judges not to issue same-sex marriage licenses.

Then Moore reaches the legal heart of the letter by stating that he is “dismayed” by judges who say they will follow the federal court’s decision. The federal district court opinion “does not bind them,” Moore claims. He says “he would advise” those judges that the Alabama Constitution and laws prohibit same-sex marriage. And he cites two Alabama Supreme Court decisions that generically say that the state court is not bound by federal court decisions.

Moore’s view depends on a quirk of constitutional structure. It’s a bit complicated, so bear with me.

The Constitution says that it is “the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” That means the federal Constitution trumps Alabama’s constitution and laws. State courts are thus bound by the U.S. Constitution.

When the U.S. Supreme Court interprets the Constitution, the state courts have to listen. In the 1958 case of Cooper v. Aaron, the Supreme Court held that its interpretation of the Constitution binds state officials under the supremacy clause. The case grew out of the Little Rock, Arkansas, school desegregation controversy. After the court’s 9-0 opinion rejecting Southern resistance, President Dwight Eisenhower sent the 101st Airborne to Little Rock to enforce the court’s judgment.

But if state courts are bound by the decision of the Supreme Court, which can directly review state court judgments, does it follow that they are also bound by the decisions of federal district and circuit courts that have overlapping geographical jurisdiction with them? Many state courts say no -- and the Supreme Court hasn’t definitively said otherwise. In support of this view is the fact that the federal district and appellate courts can’t directly review state court judgments on appeal.

Moore’s view, charitably interpreted, must therefore be that Alabama state courts can make their own independent interpretation of the U.S. Constitution -- and conclude that gay marriage isn’t the law of the land.

The problem with this view is that the federal district judge effectively ordered the state's officials to start performing same-sex marriages. The state judges who issue marriage licenses do so as agents of the state. They have therefore in essence been ordered to comply with the Constitution. They aren’t parallel interpreters of the document: There’s no case or controversy before them. They’re state functionaries. Refusal to comply with the federal court judgment would be illegitimate resistance -- akin to the resistance of Governor Orval Faubus in Little Rock.

Moore won’t lose the position of chief justice this time. In June, the Supreme Court will almost surely make the law uniform by issuing a decision on gay marriage. But in the meantime, Moore’s call for resistance should be repudiated.

(Updates previous version of this story.)

  1. The quotation, by the way, may unintentionally be a bridge too far. The last verse quoted states that “what therefore God hath joined together, let no man put asunder.” Jesus very possibly intended this verse to preclude divorce, as the Catholic Church has long interpreted it, but when I last checked, Alabama allows divorce, notwithstanding the probable sense of Jesus’s teaching on the subject.

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