Much to the chagrin of Alabama Supreme Court chief justice Roy Moore, same-sex marriage is now legal in the state thanks to last month’s federal district court ruling striking down the state’s ban. Alabama’s attorney general had requested the U.S. Supreme Court issue a stay on the issuance of marriage licenses to same-sex couples pending a ruling in a case the high court will hear in April. His request was denied on Monday morning, which means gay couples in Alabama can start marrying.
Or does it?
“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 Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.”
Thankfully, some judges have ignored Moore’s order by issuing marriage licenses to same-sex couples, but there are already reports that others are complying with what is a grossly unlawful instruction. A lesbian couple in Tuscaloosa went to the courthouse seeking a marriage license, but received a copy of Moore’s letter instead. Officials in Jackson and Marshall counties are also indulging Moore’s homophobia by rebuffing gay couples. And the probate judge in Shelby county says he’s not going to issue marriage licenses to anyone.
If Moore’s egregious buffoonery should prove a substantial hindrance to the issuance of marriage licenses to same-sex couples in Alabama in any way, shape, or form, President Obama should take a page from the playbook of Lyndon Johnson, who in 1965 sent federal troops to the state to protect Civil Rights protesters marching from Selma to Montgomery. Then-governor George Wallace refused to deploy the national guard to protect the marchers after a federal court ruled in favor of their right to protest, so Johnson sent in the feds to do the job Wallace and other Alabama officials wouldn’t.
Similarly, if Moore’s order continues to be an obstacle to the implementation of the court order, Obama should send in federal agents to ensure that the state’s probate officials comply with it.
This outrageous obstinacy is old hat for Moore. His first stint as chief justice ended in 2003, when he openly defied a federal court order requiring him to remove a 5,200-pound monument of the Ten Commandments from the state’s judicial building. For failing to adhere to the ruling, Moore was removed from office by a state judicial panel.
But in 2012 he was elected to his old post again, and now it’s same shit, different decade.
Moore is a disgrace to jurisprudence, and his willingness to defy court orders he dislikes is proof enough of that. He’s essentially advocating nullification — the idea that states can simply ignore federal laws and rulings with which they disagree. Except they can’t. The Supremacy Clause in the Constitution is clear enough on this, although the Confederacy didn’t think so. But the Civil War and the next 150 years of federal case law cleared the matter up for everyone.
Though apparently not for Roy Moore.