Alabama Supreme Court Chief Justice Roy Moore issued an administrative order Wednesday that effectively banned same-sex marriages in the state, less than seven months after the U.S. Supreme Court ruled that same-sex marriage bans violated the Constitution.
The Alabama Supreme Court initially upheld the state’s bans on same-sex marriage in Ex parte State ex rel. Alabama Policy Institute last March. Three months later, the U.S. Supreme Court ruled in Obergefell v. Hodges that same-sex marriage bans violated the Fourteenth Amendment. The state supreme court justices, including Moore, are currently re-deliberating API in response to the Supreme Court’s ruling.
“Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect,” Moore wrote Wednesday.
Central to Moore’s reasoning is the assertion that Obergefell only applied to the four states in that case, namely Kentucky, Michigan, Ohio, and Tennessee. To that end, he cited rulings in other courts that noted this theoretically limited application. “The above cases reflect an elementary principle of federal jurisdiction: a judgment only binds the parties to the case before the court,” Moore wrote.
While that may be technically correct, lower courts generally defer to the Supreme Court’s precedent when reaching decisions in similar cases. Since the Court struck down same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee as unconstitutional, for example, there would be no logical reason for the courts to uphold same-sex marriage bans in the other 46 states.
Other jurists have noted this technicality as a potential limit on Obergefell’s impact. Justice Antonin Scalia, who condemned the 5-4 decision as a “threat to American democracy” in his dissent, told a Union League audience in November that Supreme Court rulings should generally be obeyed. He then also told the audience that public officials have “no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution,” according to Princeton University politics professor Robert P. George, who attended the event.
But Moore himself said last February before the Obergefell or API rulings that if the Supreme Court ruled in favor of same-sex marriage, Alabama would have to comply. “The ruling of the Supreme Court would bind the state courts. That's the law,” he told the Associated Press in an interview.
“That doesn't make the Supreme Court right in making such a decision,” Moore added, comparing the then-hypothetical ruling to past Supreme Court rulings on slavery, racial segregation, and abortion. Shortly after the Obergefell decision came down, Moore told a church congregation that the Supreme Court had “just destroyed the institution of God.”
Moore justified Wednesday’s order, issued under his authority as the administrative head of the Alabama judiciary, as an attempt to bring uniformity to probate judges’ practices until the state supreme court makes its decision.
“Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the ‘existing orders’ in API,” he wrote. “Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses. This disparity affects the administration of justice in this State.”
BuzzFeed noted that Moore did not address federal court orders that seem to contradict his order, including a dismissed appeal in the Eleventh Circuit Court of Appeals in October in which the judges wrote that “the Alabama Supreme Court’s order was abrogated by the Supreme Court’s decision in Obergefell v. Hodges.”
This would not be Moore’s first clash with the federal judiciary. In 2003, the Alabama Court of the Judiciary removed Moore from his post as chief justice for defying a federal court order to remove a gargantuan monument of the Ten Commandments from the state judicial building. After his bids for the governorship in 2006 and 2010 ended in the primaries, voters reelected him as chief justice in 2012.
Despite his reputation for resistance, Moore’s order only delays the inevitable. Even if the full Alabama Supreme Court upholds the state’s same-sex marriage bans in its upcoming ruling, Justice Anthony Kennedy and his four colleagues from the Obergefell majority could—and almost certainly would—overrule them and bring Alabama into constitutional harmony with the rest of the Union.