Like any marriage, it's complicated.

Photographer: Joe Raedle/Getty Images

Gay-Marriage Fight in Alabama Goes One-On-One

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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A federal district judge in Alabama has struck back against state Supreme Court Justice Roy Moore. The latest development in the conflict between state and federal authority over gay marriage is an order Thursday by federal Judge Callie Granade requiring one particular state probate judge not to refuse marriage licenses to same-sex couples, as he had been doing on the basis of an order from Moore.

Yet the struggle may not be over. The federal judge's order seems definitive with respect to that one probate judge, Don Davis, in Mobile County. But if the logic of Moore's position were to be followed, that judge could appeal to the U.S. Court of Appeals. And other probate judges, who aren't named in the order, could claim that the order doesn't bind them.

In case you haven't been following this issue in the obsessive manner of a law professor, the key to the Alabama judges’ resistance to the federal decision requiring same-sex marriage depends on the idea that state courts aren't bound by what the federal district or appellate courts say about the meaning of the Constitution, because those federal courts can't directly review decisions by the state courts. I've argued that this position is wrong, because the state judges are basically functionaries when it comes to issuing marriage licenses, not independent decision-makers.

Granade’s order shows that she agrees. Her previous order declaring the ban on same-sex marriage unconstitutional told the state attorney general that he should enforce the Constitution. The problem was that probate judges are the ones who issue the marriage licenses in Alabama, and Moore directed those judges to ignore the order. Now Granade has directly ordered one of the probate judges to obey her and issue the licenses.

Her order makes no reference to any claim that the state judges aren't bound by her judgment. It's designed as an ordinary injunction, or judicial order. In theory, if the probate judge continued to disobey her, he could be subject to contempt of court and sanctions by the Alabama supervisory body that disciplines judges.

In theory, Moore must believe that Granade has no authority to issue the order. According to this view, she's a federal district judge who can't review state court decisions. The logic of Moore's position thus far should in principle remain unchanged by the order.

What consequences follow? Well, someone who’s been put under injunction by the district court can appeal to the U.S. Court of Appeals for the 5th Circuit. The probate judge would presumably be a proper party to bring such an appeal, because he's been directly ordered to do something, and is subject to punishment if he doesn't do it.

On appeal, the probate judge could argue, following Moore’s logic, that the federal district court has no authority over him when it comes to interpretation of the Constitution.

Even if the judge lost before the appellate court, he could continue to appeal to the U.S. Supreme Court. After all, according to Moore, the appellate court has no more authority over state judges than the district court.

My guess is that the probate judge won't appeal -- but you never know. It's Alabama.

The other quirk is that only one state judge is directly subject to this order. The case brought to Granade was meant as a test case, and formally involved only a single probate judge. Her signal is presumably that she would issue the same injunction with respect to any other judge -- so they should comply. By cautiously placing her injunction on just one judge, Granade avoided creating a headline that saying she’d issued an order to the entire Alabama judiciary.

According to the logic of Moore's position, even if the order were to bind the named judge, it shouldn't bind the other probate judges. It seems unlikely that Moore will now back down by instructing the other probate judges to obey.

If I were Roy Moore, I would think twice about telling the Alabama probate judge named in the order to ignore it. But I might well advise the other state probate judges that the order doesn't bind them unless they’re named, too. That would raise the stakes -- which is what Moore has been doing all along.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net