MONTGOMERY, Ala. — Alabama Supreme Court Chief Justice Roy Moore is arguing that the U.S. Supreme Court’s decision last June in Obergefell v. Hodges that declared a constitutional right to same-sex “marriage” is not automatically binding on his state.

Moore issued an administrative order on Jan. 6 declaring that Alabama probate judges should not issue civil marriage licenses to same-sex couples until the state supreme court decides how the Obergefell decision impacts state laws that define marriage as the union of one man and one woman.

For now, Moore says, the Sanctity of Marriage Act, the 2006 amendment to the Alabama Constitution that prohibits the state from recognizing same-sex “marriage,” remains in full force and effect.

“I am not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on the existing orders of the Alabama Supreme Court,” Moore wrote. “That issue remains before the entire court, which continues to deliberate on the matter.”

Moore’s order says he issued his order because, he argued, Obergefell has created “confusion and uncertainty,” with some probate judges in Alabama issuing marriage licenses to same-sex couples, other judges continuing to only give licenses to opposite-gender couples and a few judges no longer issuing marriage licenses altogether.

The Montgomery Advertiser reported that only three probate courts stopped issuing marriage licenses after Moore’s order and that 41 of the state’s 67 counties are issuing licenses to all couples.

Critics have accused Moore of ignoring the U.S. Constitution’s Supremacy Clause, which establishes that the federal constitution and federal law generally take precedence over state laws and state constitutions. Moore was also criticized after he went on Fox News Sunday last year and said he would defy a Supreme Court ruling that legalized same-sex “marriage” because it would contradict God’s design for marriage.

 

Binding Precedent?

Technically speaking, legal experts say, Moore is correct when he argues that a Supreme Court decision only binds the plaintiffs named in the particular litigation. In the Obergefell case, the high court struck down marriage amendments in Kentucky, Tennessee, Ohio and Michigan.

But the constitutional principle the Supreme Court articulated in Obergefell — that state same-sex “marriage” bans violate the 14th Amendment of the U.S. Constitution — sets a binding precedent on all lower state and federal courts. Legal scholars say judges in other jurisdictions with similar lawsuits are required to apply Obergefell, which makes same-sex “marriage” the law of the land.

“While we may consider what the court has done to be unconstitutional and unauthorized by federal law, and you could say the same thing about Roe v. Wade, the fact of the matter is that we are stuck with it,” said Robert Destro, a law professor and director of the Interdisciplinary Program in Law and Religion at The Catholic University of America’s Columbus School of Law.

Destro told the Register that Moore would have been better off saying in his order that he disagrees with Obergefell, while acknowledging its binding effects. Instead, Destro said, Moore comes across as an obstructionist.

“What you end up doing is raising the same specter we had during the civil-rights movement: of George Wallace standing in the doorway of the university to prevent desegregation,” Destro said.

Douglas Laycock, a law professor and leading expert on religious-freedom issues at the University of Virginia School of Law, told the Register that Moore was on solid legal ground in his earlier rulings, where Moore relied on somewhat technical rules about the scope and workings of court judgments to say that a federal district court judge’s January 2015 judgment was not binding on the state’s supreme court. Laycock said Moore is trying to do the same thing with his new order.

“But the Supreme Court’s precedent is binding on all state and federal courts,” Laycock said. “And [Moore] points to no colorable basis for thinking that the Alabama marriage laws differ in some potentially dispositive way from the marriage laws in Michigan, Ohio, Kentucky and Tennessee.”

 

Yearlong Dispute

Moore has been fighting against efforts to legalize same-sex “marriage” in Alabama since U.S. district court Judge Callie Granade decided on Jan. 23, 2015, that the state amendment’s ban on same-sex “marriage” was unconstitutional because it violated the Due Process and Equal Protection clauses of the 14th Amendment.

Granade’s ruling put pressure on Alabama’s probate judges to issue marriage licenses to same-sex couples. However, before Granade’s ruling was set to take effect, Moore issued a four-page memo that said the state’s probate judges were not obligated to issue those licenses.

“Interference with the right of state courts to make independent judgments based on their own view of the U.S. Constitution is a violation of state sovereignty,” Moore wrote.

On Feb. 12, 2015, Granade ruled that a probate judge in Mobile County had no legal right to refuse marriage licenses to same-sex couples who had sued the judge. In that ruling, Granade restated her Jan. 23 finding that the state marriage amendment was unconstitutional.

The Alabama Supreme Court, on March 3, 2015, in the case of Ex parte State ex rel. Alabama Policy Institute, issued its own opinion, upholding the Sanctity of Marriage Amendment, citing 19th-century cases by the U.S. Supreme Court and Alabama Supreme Court that described marriage as the union of one man and one woman and the foundation of society.

In that opinion, the Alabama Supreme Court declared that “nothing in the United States Constitution alters or overrides” the ministerial duty of probate judges to not issue marriage licenses that contradict the state’s marriage laws.

Moore, in his most recent order, defended his position that Obergefell is not automatically binding in Alabama by pointing out that federal judges for the 8th Circuit Court of Appeals and the District of Kansas have said the Supreme Court decision did not directly invalidate the marriage laws of states in their jurisdiction. In those cases, the states tried to drop their opposition to same-sex “marriage” lawsuits, saying Obergefell had made them a moot point, but the federal judges still required the cases to proceed, which ended in judgments legalizing same-sex “marriage” in Kansas and Nebraska.

In October 2015, the 11th Circuit Court of Appeals, which includes Alabama in its jurisdiction, ruled that Obergefell nullified the Alabama Supreme Court’s previous rulings on same-sex “marriage,” leading some observers to say that Moore is encouraging state probate judges to violate federal law.

“You just can’t defy these rulings; otherwise, you lose the rule of law,” Destro said. “You have to work to change it in some other way.”

 

Support for Moore

But some observers and scholars are also defending Moore, saying he is taking a principled stand against what they say was the U.S. Supreme Court’s illegitimate ruling in Obergefell.

“They invented a right to same-sex ‘marriage’ out of thin air. There is nothing in our nation’s laws, history or Constitution that requires states to redefine marriage,” said Brian Brown, president of the National Organization for Marriage, which has launched an online petition to support Moore.

Brown also noted that more than 70 scholars have signed a “Statement Calling for Constitutional Resistance to Obergefell v. Hodges,” which is posted on the website of the American Principles Project, a conservative nonprofit organization. The statement calls on federal and state officeholders to refuse to accept Obergefell as binding precedent on all states and to recognize the authority of states to define marriage.

“I support what [Moore] is doing,” said Anne Hendershott, the director of the Veritas Center for Ethics in Public Life at the Franciscan University of Steubenville.

Hendershott, who signed the statement, told the Register that she believes the question of whether Obergefell applies to all states is still “very much in play.”

“Federal law still recognizes the authority of states to define marriage and the right of state and federal officeholders to act in accord with those definitions,” Hendershott said.

The fight now moves back to the Alabama Supreme Court. On June 29, 2015, three days after the U.S. Supreme Court issued its decision in Obergefell, the Alabama Supreme Court requested the parties in Ex parte State ex rel. Alabama Policy Institute file briefs stating their positions on how the U.S. Supreme Court’s ruling effects the Alabama Supreme Court’s decisions. Moore has not said when the Alabama Supreme Court will issue an opinion.

Whether or not the Alabama Supreme Court will apply the reasoning of the U.S. Circuit Court of Appeals, the U.S. District Court for the District of Kansas “or some other legal analysis” to the question of same-sex “marriage” in Alabama, Moore wrote, “is yet to be determined.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.