Moore Orders Alabama Judges Not to Issue Same-Sex Marriage Licenses

It seems that theocratic bigot Roy Moore, Chief Justice of the Alabama Supreme Court, is just spoiling for a fight (okay, another fight) with the federal courts. He’s now gone far beyond just arguing that Alabama doesn’t have to follow a federal court ruling overturning the ban on same-sex marriage by ordering county judges not to issue marriage licenses to same-sex couples.

Late Sunday night, Alabama Chief Justice Roy Moore issued an order in which he instructs state probate judges to neither issue nor recognize a marriage license for same-sex couples.

The order states, “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.”

It continues to say that if any probate judge fails to follow the state constitution, “it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley… to ensure the execution of the law.”

Because the appeals court refused to issue a stay of the lower court order (as the Supreme Court has done in many other states), same-sex marriages were to begin on Monday morning. This is not going to end well. It’s going to prompt a serious showdown between federal and state courts. One can only hope that it also ends Moore’s career. Here’s his full order:

Moore Order Samesex

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  • cptdoom

    And like every other winger calling for resistance to these orders, Moore won’t necessarily be facing any real risks of his order. He’s not the one who’s supposed to issue marriage licenses and face possible jail time for refusal to do so.

  • whheydt

    It looks like Moore is trying to split legal hairs, in that he is claiming that the order tossing the anti-SSM lasws in AL is directed at the the state AG, plus his assertion that this decision–if implemented–would tread on the toes of other Federal district judges in AL.

    I suspect that Moore is going to get invited to explain himself to a seriously pissed off Federal judge, with–potentially–an all expenses paid vacation at a Federal facility until he decides that the Federal courts have precedence over state courts.

    One may hope that John Pieret will pop in and explain what options are possible and what is likely to happen..

  • brucegee1962

    Ed, what options do the Federal Courts have here? Could they get him disbarred? I’m guessing that seeing him arrested is too much to

    hope for — I can’t imagine anybody wanting to see a showdown between Federal marshals and state troopers.

    Also, is there a chance that this would make the Supremes move the case farther up their docket?

    Apparently Moore must have been reading about Massive Resistance to desegregating the schools and thought, “That worked so well, let’s try it again.”

  • whheydt

    Well…the *last* time Moore disobeyed a Federal court order, the state judicial ethics panel threw him out of office. That was in 2003. He made a couple unsuccessful runs for office–governor was one–and then ran for Chief Justice of the state supreme court (again) and won…and here we are again.

    If he escapes the direct displeasure of the Federal judge, I’d look to see the same state panel toss him again. SPLC has already filed an ethics complaint against him.

    If I lived in Alabama, I would consider him to be a serious embarrassment to the state and hope the panel would be able to toss him out of office in a way that didn’t permit him to get back into it. If Alabama requires its judges to be members of the State Bar, one might hope to see him disbarred over this as well.

  • raven

    …on same-sex marriage by ordering county judges not to issue marriage licenses to same-sex couples.

    1. Does this judge Roy Moore really have that power? In most states. the Supreme court is a panel of judges and they vote on a lot of things.

    This directive might have all the legal authority of one I issue.

    2. While they are issuing orders, why can’t the federal courts just issue their own orders that Roy Moore is an American hating kook and they can ignore his order as not legally binding.

    It continues to say that if any probate judge fails to follow the state constitution, “it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley… to ensure the execution of the law.”

    The Govenor, Robert Bentley, can just roll his eyes and ignore this. He wasn’t elected by or work for Judge Roy Moore.

    Shrug? It’s Alabama. Far as I’m concerned it’s a No Go Zone for normal people. I certainly would be afraid to be caught any where down that way.

  • raven

    I’d be surprised if any state body in Alabama does anything this time.

    They should, they did once before, but you know…it is Alabama. Sorry to sound like a bigot but there is never anything good about Alabama in the news but there is a lot that isn’t.

    I don’t know what the federal court could do either. I suppose they could just tell the probate court judges to ignore Roy Moore. He really is just one guy without any more tangible power than anyone with a gun collection and god voices in his head.

    Or the feds could just set up a marriage license bureau and start issuing marriage licenses and declare the state court ones null and void, not matter who you are.

  • whheydt

    Re: raven at #5 & 6…

    So far as I know (IANAL), generally court systems are controlled from the top down. Lower courts have to obey directives from higher courts. Moore probably has either direct authority (as Chief Justice of the Alabama State Supreme Court), or he has to get a majority of his fellow justices to go along to issue his order. That said, Federal courts are superior to all state courts, so Moore is bucking a Federal judge and–so far as I know–could be held accountable for doing so. That is certainly what I would love to see happen. I suspect that it would start with a “show cause” order to Moore to show up in the Federal courtroom and explain to the judge why he shouldn’t be held in contempt. After that…things might get ugly and if Moore is sufficiently abrasive in person, the Federal judge might decide to give him a “time out” to think about it. (One can only hope…)

    In practice, I think that any SS couple could ask for a Federal court order to be issued to any Alabama probate judge directing said judge to ignore Moore and do what the Federal court has ordered. Might take a few days though.

  • raven

    10 Scariest States to Be an Atheist Greta Christina FTB’s

    June 12, 2011

    #7: Alabama. The state where the actual governor, Robert Bentley, said in actual words, “Anybody here today who has not accepted Jesus Christ as their savior, I’m telling you, you’re not my brother and you’re not my sister.”

    The state where it took an interfaith delegation, led by the Anti-Defamation league, to inform him that there are non-Christians in Alabama. Non-Christians who — I hope I don’t have to remind you — are fully fledged legal residents of the state. Non-Christians whom Bentley also serves as governor… every bit as much as he serves the Christians. As American Atheists president David Silverman says, “Top of my list is Alabama, home of Roy Moore and ‘You are not my brother’ Governor Bentley. It appears that to hold office in Alabama, you have to be completely ignorant of American Law and despise the Separation of Church and State.”

    Here is what Greta Christina, another FTBer said about Alabama, rated 7th worst place to be a atheist. Sounds like a No Go Zone to me.

    The state where the actual governor, Robert Bentley, said in actual words, “Anybody here today who has not accepted Jesus Christ as their savior, I’m telling you, you’re not my brother and you’re not my sister.”

    That is OK Governor Kook Bentley. You aren’t even my distant relative, thank Cthulhu. I would find it a nightmare to be related to you, even in symbolic words.

  • raven

    @7 whheydt

    That chain of command is for normal conditions. This isn’t it.

    I doubt if Chief Justice Moore can arbitrarily rule from the bench. He is a judge, only one person, and has no enforcement powers. That is an executive branch function.

    That being said, the christofascist governor isn’t going to be any help. He is on public record as an atheist hater and proud of it among his other hates.

    If I was the fed, I’d just let Alabama and Moore twist in the wind. The guy will cheerfully take all the tope you give him and hang himself.

    And at some point, being a wannabe dictator outside the law becomes too blatant to ignore and/or becomes a criminal offense. I’m sure Moore wants to be a xian martyr and sure it is only as long as it doesn’t actually cost him anything.

    I’m not sure what the federal powers are but they are considerable. Maybe they could just declare the Alabama court system null and void and set up a new one in parallel. I’m sure they would like that.

  • Will

    “If I lived in Alabama, I would consider him to be a serious embarrassment to the state and hope the panel would be able to toss him out of office in a way that didn’t permit him to get back into it.”

    Well, those of us who think for ourselves have considered him to be an embarrassment since his ten commandments debacle. The majority of Alabamians, unfortunately, consider him to be a staunch defender of the Christian faith and one of the few politicians that will do whatever it takes to uphold their sacred beliefs. Alabama is still a state controlled by a religious majority whose more progressive will happily tell you, “I don’t hate the gays, I just don’t support that lifestyle and I don’t think they should be able to marry.” It doesn’t matter that marriage equality is an inevitability for them. It’s the fight that matters. And when the fight is lost they will simply complain loudly about how the world is going to hell and proudly shoulder up behind the next bastion against social progress. These people believe they’re in the end times and the politicians who take advantage of them feed this fear as much as possible. Every fight is a righteous crusade and even if we lose, isn’t that what the Bible said would happen? You can’t argue using reason and logic with an opponent who finds those concepts to be anathema.

  • John Pieret

    Okay, as to what can happen, the Federal judge in Alabama has already clarified that by quoting from the Federal judge in Florida on the same issue (which Florida officials, wisely, decided to obey):

    As Judge Hinkle of the Northern District of Florida recently stated when presented with an almost identical issue:

    History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.

    * * * *

    The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk’s obligation to follow the law arises from sources other than the preliminary injunction.

    In short, the District Court is warning that there is a relatively easy way for people denied marriage licenses to enforce the court order against individual clerks (and Judge Roy Bean Moore and get all their legal costs back. Also, a government official who knowingly violates a well-known provision of the Constitution can lose his/her limited immunity and become personally liable for those damages.

    In a perfect world, Moore could be personally liable to pay off the legal costs of hundreds of people who were forced to take probate judges to court to get their marriage licenses.

  • John Pieret

    P.S. For those interested, a good place to watch this would be SCOTUSblog’s coverage of same-sex marriage:

    http://www.scotusblog.com/category/special-features/same-sex-marriage/

  • laurentweppe

    One can only hope that it also ends Moore’s career. Here’s his full order

    It won’t: the sovereign citizen treatment (“let’s see if you still think you’re so clever one you’ve spend a decade in jail”) is reserved to plebeians. Moore will more likely get a slap on the wrist, pretend that it makes him a martyr, and use it to further entrench his position within Alabama’s ruling class.

  • ed440

    One thing that could happen … the federal judge could order Judge Moore to rescind his instructions to Alabama clerks and judges because it violates his order lifting the ban on same sex marriages.

    If Judge Moore defies a direct order from a federal judge he can, and probably would be, held in contempt. That could get him a stay in jail until he is willing to comply.

    I hope it happens. Lets see how much Judge Moore is willing to be a martyr for his cause.

  • tbp1

    You’d think an appellate court judge would understand how appellate courts work, but in this case you’d be wrong.

  • eric

    What an unenviable position for AL clerks. If they defy federal law, they could be sued and face jail time. If they defy Moore, no doubt their chance of promotion or even continued employment within the AL state legal system is in serious jeopardy.

    For them (as well as SSM applicants who may also be caught in the crossfire), I hope that Moore is removed fast, with very strong legal language. No doubt he’ll be back again, but having him in the judiciary 2-4 years out of every 10 is still better than having him in the judiciary 10 years out of every 10.

  • David C Brayton

    Who in their right mind still writes in twelve point Courier?

  • John Pieret

    David C Brayton:

    The appellate courts in my state like Courier New in 12 point. All my appellate briefs are written in it. The most popular alternative is Times New Roman in 14 point which, to my eye, looks like it is written in crayon.

  • gshelley

    And the Supreme Court refuses to offer a stay, with Scalia and Thomas again commenting on how much they dislike the decision

    http://www.bloomberg.com/politics/articles/2015-02-09/gay-marriage-cleared-by-u-s-supreme-court-to-start-in-alabama

    Did any of the other states where the Federal judge refused to issue an stay get one from the Supreme Court? I know most of them did issue a stay, but I can’t remember which ones didn’t, so don’t know how to find the information

    I assume the Supreme Court will hear and their judgement before

    I see the eleventh circuit decided to delay hearing appeals until the Supreme Court has weighed in, and presumably also refused to issue a stay. Would this have influenced the Supreme Court decision?

  • John Pieret

    gshelley:

    In every other case where the trial court and Circuit court denied a stay, the Supreme Court has also denied one. Off the top of my head, that includes Alaska, Idaho, Utah, Montana, Kansas, North Carolina and South Carolina. I believe the Ninth, Seventh and Fourth Circuits are the Circuit courts that have refused to issue stays but not all the states in those circuits sought stays from SCOTUS.

  • whheydt

    Even the BBC has picked up the story. There are also hints that Moore may be planning to defy SCOTUS if (as expected) their decision goes contrary to what he thinks. That could be…interesting.

  • John Pieret

    And now it’s really going to get interesting. The Alabama Attorney General just threw the probate judges under the bus:

    Attorney General Strange said in a public statement on Monday morning after the Supreme Court acted that the state’s probate judges who had any doubt about what they could or could not do now should consult an attorney.

    http://www.scotusblog.com/2015/02/alabama-the-37th-same-sex-marriage-state/

    Moore, of course, is trying to put the onus on the Governor, by saying that probate judges should not issue SSM licenses but it is up to the Governor to enforce Moore’s order. So if SSM goes ahead, Moore can blame the Governor for not removing or otherwise disciplining probate judges for issuing the licenses and if he does discipline them he can face contempt proceedings in Federal court.

    I wonder when the next election for governor is?

  • raven

    Is this what the right wingnuts mean by judicial activism?

    Roy Moore is telling the Alabama courts to ignore the law because he doesn’t like it.

    There are also hints that Moore may be planning to defy SCOTUS if (as expected) their decision goes contrary to what he thinks.

    I’m sure he will. But so what? Roy Moore is just one guy and since he is acting outside the law, has no legal authority to do what he is doing. What is to keep everyone else from just ignoring…Roy Moore and letting his little temper tantrum run its course.

  • felicis

    “WHEREAS, the Eleventh Amendment of the United States Constitution prohibits the Attorney General, as a defendant in a legal action, from standing as a surrogatefor all state officials;”

    Am I missing something? I don’t see how, “The Judicial power of the United States shall not be construed to extend to any suit in law or Equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” limits the [state] AG in any particular way.

    Not that I know a lot about the law – but this particular ‘whereas’ struck me as a little odd… Is there a sound legal reason he would include it?

    Either way – I’m popping corn to watch the fight…

  • caseloweraz

    Moore issued this order late on a Sunday night? He must have been trying to duck publicity to the extent possible. Didn’t work very well though.

  • John Pieret

    felicis:

    It is a rather arcane area of the law but citizens generally can’t sue states directly (unless the state has permitted such suits, which most if not all states do, particularly in negligence cases). In claims of states violating constitutional rights, individual officials are sued to enjoin them from enforcing the law. Moore’s argument is that the AG can’t issue marriage licenses and has no power over the Alabama judicial branch to order the probate judges to issue SSM licenses. It’s not (surprisingly) a batshit crazy argument but the District Court judge will get around it in the way I indicated in #11 above. Moore, the Governor and all the probate judges who have not followed the Federal court ruling (apparently most have) will be added to the case, an injunction will again be issued and the plaintiffs’ attorney fees assessed against the new defendants.

  • weatherwax

    So far Moore’s order is being ignored, though I haven’t seen any sign he’s facing repercussions, either.

    http://www.msn.com/en-us/news/us/same-sex-couples-marry-in-alabama-after-us-supreme-court-refuses-stay/ar-AA9anou

  • gshelley

    So does anyone know what the very similar case last year where they did issue a stay that Scalia and Thomas mentioned was?

  • abb3w

    @11, John Pieret

    In short, the District Court is warning that there is a relatively easy way for people denied marriage licenses to enforce the court order against individual clerks

    Could a liberal-leaning clerk or state probate judge (whoever issues licenses in Alabama), worried about the direct order from Moore contradicting the Federal court, sue Judge Moore before that District Court on some grounds?

  • John Pieret

    A probate judge could probably seek to intervene in the case (so that he/she would be a party to the case and, therefore, be directly subject to the injunction). Then he/she would have an all-but-ironclad defense against any actions by the state for having issued such licenses.

    It may be a moot point, however, since Moore passed the buck of enforcing his order to the Governor, who has now said that he will take no action against probate judges who issue SSM licenses.

  • felicis

    Thanks John P.

    I didn’t realize that individual offices were sued in such cases – but the practical result is that a Federal Court injunction would stop a law from being enforced unless/until Supreme Court review overturned the decision, regardless of the office being sued (is it typically the AG for a state? Or does that vary depending on state/statute?)

    I sometimes wish I had the time and money to study law enough to really appreciate its complexity!

  • whheydt

    Re: John Pieret @ #30…

    Thanks… I hadn’t seen the reports that the governor was declining to enforce Moore’s order. That makes the governor smarter than I thought, and decidedly smarter than Moore.

    Re: felicis @ #31…

    In the Prop. 8 case, the defendants were a couple of county clerks (each pair of plaintiffs was from a different county), the governor and the California attorney general. That meant that the original defendants included Gov. Schwartzenegger and A.G. Jerry Brown. During the time of appeals process, there was a statewide election, so when the case was finally decided, the defendants included Gov. Jerry Brown and A. G. Kamala Harris. (FYI…Harris is now running for the soon to be vacant US Senate seat now held by Barbara Boxer.)

  • John Pieret

    felicis:

    AGs and governors are commonly sued because they are generally considered the chief law enforcement officers in a state. Others may be sued depending on the nature of the law (e.g. a head of the state’s Board of Education in cases involving unequal education). I’m rather surprised they didn’t sue the probate judge that denied the plaintiff’s petition for one partner to adopt the other’s biological child and they also did not sue the governor. That might have avoided this messy end game.

  • John Pieret

    Oh, by the way, the plaintiffs have filed a motion in the original case to hold one of the probate judges (Mobile County) in contempt of the judge’s order for refusing to open his office and issue SSM marriage licenses. Presumably that’s the county the plaintiff’s live in so the probate judge had no right to deny those two people an Alabama marriage license, even if the order doesn’t (yet) apply to all probate judges and all same-sex couples.

  • eric

    Moore, of course, is trying to put the onus on the Governor, by saying that probate judges should not issue SSM licenses but it is up to the Governor to enforce Moore’s order.

    Maybe that’s his way of extracting himself from the situation. Now when very few AL offices listen to him, he can say its not his fault. No doubt if many more offices had followed him or start to follow him, his rhetoric woudl’ve been a lot more fiery on enforcement. But since they aren’t, he is scurrying away from the ship.

    Kinda ironic. At the same time that you have Governors Christie and Walker getting themselves out of the SSM debate by claiming their hands are tied by the judiciary, you have Moore perhaps trying to get himself out of the debate by claiming his hands are tied by the Governor’s enforcement powers.