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History as Farce at the Alabama Supreme Court

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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When Alabama Chief Justice Roy Moore ordered his state’s probate judges in January to ignore a Supreme Court ruling legalizing gay marriage, he put himself in jeopardy of losing his job – for the second time. Now Alabama’s Judicial Inquiry Commission has filed formal charges against him for his defiance.

Moore should lose his job. But as he’s shown before, that’s a setback he can overcome. Last time he was removed from office, he ran for governor before settling for reelection as chief justice. Who knows? This time he might even win the governorship.

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Moore’s shenanigans go back to 2003, when, in his first term as elected chief justice, he commissioned a granite statue of the Ten Commandments to be placed in front of the Alabama Judicial Building where the state Supreme Court is housed. The monument violated the establishment clause of the First Amendment, a federal district court held. But when the court ordered Moore to have the statue removed, he refused.

Civil disobedience is one thing when you’re an ordinary civilian who deems a judicial order to be morally or legally wrong. It’s another when you’re sworn to uphold the law -- not only the law of Alabama, but the U.S. Constitution. For his recalcitrance in flouting a binding federal court order, Moore was removed from office. He ran for governor in 2006 and 2010, but didn’t make it out of the Republican primary either time.

Undeterred, Moore ran for chief justice again, and in 2012 he won his old job back. The reason Moore could run again was that, when the Alabama Court of the Judiciary removed him in 2003, it apparently didn’t have the authority to prohibit him from running again. 

Once back as chief justice, Moore had no more desire to do the job normally than he did the first time. Beginning in January 2015, before the U.S. Supreme Court ruled that gay marriage is a constitutional right, Moore started the process of defying federal constitutional authority.

A federal district court judge sitting in Alabama had ruled that the state’s ban on gay marriage was unconstitutional, applying the logic of U.S. v. Windsor, the 2013 decision that struck down the federal Defense of Marriage Act.

Moore wrote a letter to the Alabama governor saying that the state’s probate judges weren’t bound by the federal judge’s decision. He followed up in February with an order to the same judges telling them not to issue marriage licenses to same-sex couples. This precipitated a crisis when the federal district judge didn’t back down. Moore was supported by the other justices of the state Supreme Court, who in March issued an opinion stating that in their opinion, same-sex marriage wasn’t a constitutional right.

In my view Moore’s actions were legally wrong. But as I noted then, Moore wasn’t going to lose his job for them. The U.S. Supreme Court has never held that state supreme courts are bound by a federal district court’s interpretation of the Constitution. Moore’s actions were reprehensible, but it couldn’t be said authoritatively that he’d ordered the probate judges to act unlawfully.

When the Supreme Court has spoken about the meaning of the Constitution, however, its word is final. With respect to gay marriage, the defining moment occurred in June 2015, when the court announced its judgment in Obergefell v. Hodges.

But Moore wouldn’t give up. In January 2016, nearly six months after the Obergefell decision, he issued a fresh order to the probate judges telling them that the Obergefell decision only bound the parties to it, and that they should continue to ignore it unless directed to do otherwise by the Alabama Supreme Court.

In filing its complaint against Moore, the judicial inquiry commission explained why this order was an act of judicial defiance. The federal district court judge never lifted the order to the probate judges to issue same-sex marriage licenses, instead staying it until the Obergefell case was decided. Once that happened, the order took effect.

Now the federal judge wasn’t ordering state probate judges to follow her interpretation of the Constitution. She was ordering them to follow the Supreme Court’s interpretation. The supremacy clause of the U.S. Constitution says that state judges are bound by the Constitution, anything in state law notwithstanding. Under the 1958 case of Cooper v. Aaron, the Supreme Court gets to say what the Constitution means and state courts have to listen.

So Moore was telling state courts to ignore a valid order from the federal court -- almost precisely the same thing he did in 2003. The only logical thing for the Alabama special judicial court to do is to remove him from office like last time.

In his essay, “The Eighteenth Brumaire of Louis Napoleon,” Karl Marx famously remarked that when history repeats itself, the first time is tragedy, the second farce. Moore’s history is just farce. The tragedy would be if Alabama voters failed to learn the lesson of history and rewarded him at the polls.

 

  1. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

  2. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

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:
Jonathan Landman at jlandman4@bloomberg.net