Judge Defies Gay Marriage Law
By Alan Blinder of The New York Times
February 8, 2015
TUSCALOOSA, Ala. — In a dramatic show of defiance toward the federal judiciary, Chief Justice Roy S. Moore of the Alabama Supreme Court on Sunday night ordered the state’s probate judges not to issue marriage licenses to gay couples on Monday, the day same-sex marriages were expected to begin here.
“Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the Alabama Constitution or state law, the chief justice wrote in his order.
The order, coming just hours before the January decisions of United States District Court Judge Callie V. S. Granade were scheduled to take effect, was almost certainly going to thrust this state into legal turmoil. It was not immediately clear how the state’s 68 probate judges, who, like Chief Justice Moore, are popularly elected, would respond to the order.
Since Judge Granade moved last month to declare Alabama’s prohibitions against same-sex marriage unconstitutional, the chief justice has insisted that the probate judges were not required to abide by her decisions. But, in an interview on Wednesday, he said he thought he could do little more than guide the probate judges on how to respond.
“I think I’ve done what I can do: advise the state court probate judges that they’re not bound by any ruling of the Federal District Court,” he said. But by Sunday night, the chief justice, faced with the prospect of many judges allowing same-sex marriages to move forward, acted, in part, “to ensure the orderly administration of justice within the State of Alabama.”
Reached by telephone late Sunday night, Ben Cooper, chairman of the board of the gay rights group Equality Alabama, said that same-sex couples expected to be issued marriage licenses Monday morning.
“We are continuing to move forward tomorrow,” Mr. Cooper said. “If we walk in and licenses are refused, if they do not comply with the federal order, then these probate judges could be personally liable,” said Mr. Cooper, who added that he expected legal actions to be filed against the individual probate judges if they do not issue the licenses. Some judges across the state had already signaled they would do nothing to aid gay couples and, in some instances, any couples. “Marriage licenses and ceremonies are no longer available at the Pike County Probate Office,” the office said.
And Washington County Probate Judge Nick Williams released a “declaration in support of marriage” in which he said he would “only issue marriage licenses and solemnize ceremonies consistent with Alabama law and the U.S. Constitution; namely, between one man and one woman only, so help me God.”
Several judges elsewhere announced variations of those plans after a push by Chief Justice Moore, who rose to national prominence in the early 2000s when he defied a federal judge’s order to remove a Ten Commandments monument from a Montgomery building and was subsequently ousted from his post leading the high court. He staged a political comeback, became chief justice again in 2013, and has in recent weeks said that Alabama’s probate judges are not bound by a federal trial court’s decisions. His argument has deep resonance in a place where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.
Although much has changed from Wallace’s era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that Judge Granade, an appointee of President George W. Bush who joined the federal bench in 2002, had instigated a grave breach of law. The result had been a legal and cultural debate rife with overtones of history, closely held religious beliefs and a chronically bubbling mistrust of the federal government that was expected to play out at Alabama’s courthouses Monday. “I didn’t start this,” Chief Justice Moore said last week of the controversy. “This was a federal court case pushed on our state.”
Judge Granade has signaled that she expects probate judges to carry out her decisions, and judges, before the chief justice’s order, had often said they would. “With all due respect to Chief Justice Moore, he’s on the Alabama Supreme Court, and he’s not a federal judge,” said Alan L. King, a probate judge in Jefferson County, said last week. The chief justice’s misgivings speak to widespread concerns here about federal overreach and same-sex marriage in Alabama, where about 81 percent of voters in 2006 supported a constitutional amendment banning gay nuptials. Few here doubt the force of his belief that Judge Granade’s orders hold only “persuasive authority,” and not binding power, on Alabama judges.
“My guess is that is actually the way Roy Moore sincerely understands the federal-state relationship,” said Joseph Smith, a judicial politics expert at the University of Alabama. “He’s also an elected politician, and he knows who his constituency is.”
So he has for now turned his words against Judge Granade. “She can’t order them to recognize the unconstitutionality of the Sanctity of Marriage Amendment by her views,” the chief justice said in a telephone interview during which he quoted Alabama statutes verbatim and resisted comparisons to Wallace. Despite Chief Justice Moore’s protests, some analysts see parallels between his arguments now and those Wallace advanced in his own time. “It’s a very similar strain of ideology: the state’s rights, resisting the national tide, resisting liberal movements in policy,” Dr. Smith said.
Some legal scholars say that the chief justice may be correct in his interpretation of the immediate scope of the federal court’s rulings and how they apply to the probate judges. But his eagerness in pronouncing his views unnerved some in Alabama who feared that it might stir local judges to resist Judge Granade. “I don’t want to see judges make the same mistakes that I think were made in this state 50 years ago, where you have state officials not abiding by federal orders,” said Judge Steven L. Reed of Montgomery County, who added, “The legacy always hangs over us until we show that we’re beyond it.” But there had been only limited talk of plans for sweeping defiance by probate judges, including those who say that same-sex marriages conflict with their religious views.
In Geneva County, Judge Fred Hamic said Wednesday he would issue licenses to gay couples but that they would have to go somewhere else to wed. “I believe I would be partaking in a sin, and I sin every day, don’t get me wrong,” he said. “This is one sin I do not have to participate in, not that you have to participate in any sin.” For many here, it is unsurprising that Chief Justice Moore emerged as a strident voice in a social debate after the dispute about the Ten Commandments display, known as “Roy’s Rock,” forced him from power. “Unfortunately, sometimes it makes for very good politics here to be seen as opposing federal intervention, whether it’s from a court or a federal agency,” said David G. Kennedy, who represents two women involved in a case that prompted Judge Granade’s decision. “The situation here is that this is not federal intervention. It’s not federal intervention at all. What it is, is a federal court declaring what same-sex couples’ rights are under the federal Constitution.”
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