Mr. Defiance.

Photographer: Gary Tramontina/Getty Images

Alabama's Obstruction of Gay Marriage Must Stop

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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Alabama Chief Justice Roy Moore is at it again, grandstanding to block implementation of the U.S. Supreme Court’s gay-marriage decision in his state. This time his legal arguments are much weaker than they were last January and February and March, before the nation’s highest court ruled in June. And this time Moore is flirting with outright defiance and the potential loss of his post. That’s an experience he’s had before: In 2003, he was removed from office after defying a federal court order to uproot a granite statue of the Ten Commandments in front of the Alabama Supreme Court.

The legal order Moore issued Wednesday to probate judges, who issue marriage licenses in the state, is a piece of obfuscation, but not a masterpiece of it. Moore acknowledges that after the Alabama court upheld the state’s ban on same-sex marriage in March, the U.S. Supreme Court subsequently decided Obergefell v. Hodges.

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He then goes on to assert that Obergefell is binding only on the parties to that case, who weren’t from Alabama. Moore calls it an “elementary principle of federal jurisdiction” that a decision “only binds parties to the case before the court.” Thus, Moore concludes, it is uncertain whether the constitutional ruling that mandates same-sex marriage applies in Alabama.

Moore is exploiting a technical but misleading feature of a precedent-based legal system. In theory, a precedent-establishing Supreme Court decision doesn’t “decide” analogous cases. Rather, it directs the outcome in those cases by establishing the rule that all lower courts are bound to obey. Under the rule of law, those courts automatically follow the precedent.

Normally, no “clarification” is needed once the high court’s ruling has been issued. An order could (and should) have been issued forthwith stating that Alabama’s marriage law was now unconstitutional.

In practical terms, it’s preposterous to think that a new state supreme court judgment is necessary to apply the Obergefell precedent. Moore’s order is therefore skirting the boundary of defying the Constitution as interpreted by the U.S. Supreme Court.

But Moore’s a slippery legal character. Notice that to this point in his order, Moore hadn’t ordered anything. He’d simply stated a general legal principle, albeit one stripped of its context to the point of becoming empty.

Moore went on in his order to claim that there is confusion among probate judges about what to do next, given the supposed conflict between the U.S. Supreme Court and the state court judgment. This confusion, he said, couldn’t be resolved by himself sitting as chief justice, but would require resolution by his whole court. He then ordered the probate judges not to issue licenses for same-sex marriages until the court could meet.

The problem here is that the “confusion” among probate judges is nonexistent. Any judge knows that the U.S. Supreme Court’s interpretation of the Constitution trumps the state court’s. Indeed, you don’t have to be a lawyer to know that the Supreme Court has spoken, and gay marriage is the law of the land.

Moore wasn’t resolving existing confusion. He was intentionally creating confusion where there was none.

So what happens next? The good news is that many probate judges are likely to ignore Moore’s order. If any probate judges don’t issue marriage licenses, plaintiffs will go to federal district court and get an order requiring them to do so. Any delay in the issuance of the licenses is very likely to be short-lived.

That doesn’t answer the question of what happens to Moore -- or what should. In its entirety, his order can and should be read as a conscious effort to use his post as chief justice to violate the Constitution by delaying its implementation. That’s not a small matter for any lawyer, to say nothing of a state supreme court justice.

The two U.S. attorneys for Alabama accordingly issued a joint statement indicating that they have “grave concerns” about Moore’s order, “which directs Alabama probate judges to disobey the ruling of the Supreme Court.” The U.S. attorneys could seek a federal court order reversing Moore’s order.

More aggressively, the federal government could charge Moore with obstructing justice. To win, the government would have to prove Moore “corruptly” sought to obstruct the course of justice. The charge is unlikely to be brought, even if it is legally available. Criminal charges would make Moore a martyr, which is exactly what he wants, and extend the controversy.

Yet the Alabama Judicial Inquiry Commission should open an investigation against Moore, and the Alabama Court of the Judiciary should probably order him removed, as happened in 2003 when Moore overtly refused to comply with a federal district court order. This time, he’s defying the U.S. Supreme Court’s authority, which is arguably worse from a rule of law standpoint, and worse as a matter of judicial ethics. At least last time Moore was open about defying the law. This time he’s being underhanded about it.

If the commission wants to file a more technical charge, it could also maintain that Moore is interfering with the pre-existing U.S. district court orders to state probate judges to issue marriage licenses to gay couples. Either way, he’s flagrantly resisting the legal hierarchy established by the Constitution.

The right resolution is to kick Moore out of office again. The position is elected, and he may run again in the future. But maybe the Alabama public would be prepared to reject him as a two-time constitutional loser and a legal embarrassment. If the public wants Moore back, so be it -- but it would be another reason to doubt the wisdom of electing state judges.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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

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