This month, federal courts threw out Alabama's same-sex marriage ban.
But Alabama Chief Justice Roy S. Moore is proclaiming himself above the law. Instead, he's taken the unique position that his state doesn't have to be bound by any federal authority on gay marriage, even if the federal Supreme Court rules later this year that prohibitions on same-sex marriage are unconstitutional.
The background: In February, a federal judge ruled that Alabama's same-sex marriage ban was unconstitutional and ordered the state to begin handing out same-sex marriage licenses on Feb. 9. The U.S. Supreme Court, which is set to begin hearing oral arguments on the constitutionality of four separate state-level gay marriage bans in April, refused to stay the federal order until those cases were heard.
Moore wasn't having it, and ordered the state's 68 probate judges to refuse to comply with the order in spite of the well-established doctrine of federal supremacy over state courts. By doing so, Moore began drawing comparisons to former Alabama Gov. George Wallace, who attempted to defy federally ordered racial integration of the state's schools in 1963 by blocking Army troops dispatched by President John F. Kennedy to enforce it. Around 50 of the probates followed his lead, either because they agreed with Moore's legal reasoning or feared he would discipline those handing out same-sex marriage licenses. But a week later, most have abandoned Moore and begun marrying gays and lesbians.
What Moore is saying: Moore is arguing that any federal expansion of marriage rights to gay couples is so onerous that the state of Alabama doesn't have to comply with its ruling. He's using the age-old argument that since the term "marriage" isn't included in the Constitution, the power to define it is delegated to the states and the Supreme Court has no authority to interfere with Alabama's marriage laws.
In an appearance on Fox News Sunday this week, Moore made his position clear and said that he would continue to order the state's probate judges to disregard any and all federal rulings on same-sex marriage. According to Moore, the buck stops with the Supreme Court of Alabama, not the SCOTUS:
"When federal courts start changing our Constitution by defining words that are not even there, like marriage, they're going to do the same thing with family in the future," Moore said on the program. "When a word is not in the Constitution, clearly, the powers of the Supreme Court do not allow them to redefine words and seize power. The power is not delegated to the United States by the Constitution nor prohibited by it to the states or reserved to the states respectively or to the people."
Moore then asserted that he answered to the code of "organic law" set forth in the Bible, and said his firm stance against gay marriage was just like opposition to notorious historical SCOTUS rulings that upheld institutional racism.
"This power over marriage, which came from God under our organic law, is not to be redefined by the United States Supreme Court or any federal court," he told Fox. "They may do it, but they may do it wrongfully, just like they did in" rulings such as the 1857 Dred Scott decision (which ruled slaves are property, not people) or the 1896 Plessy v. Ferguson decision (which ruled racial segregation was legal).
"Should a court today obey such a ruling that is completely contradictory to the Constitution?" Moore said.
Why it's B.S.: Same-sex marriage is terribly unpopular in conservative Alabama, where the New York TImes reports that up to two-thirds of voters oppose granting marriage licenses to same-sex couples. Opposition to gay rights runs deep, just as resistance to integration was firm among a solid majority of the state's white citizens during the days of Wallace.
But the notion that Alabama has the right to dictate the terms on which it will follow federal law is, legally speaking, as ridiculous now as it was then. Federal courts tell state ones what to do. End of story.
In a separate interview with CNN's State of the Union, Alabama probate Judge Steve L. Reed explained that he had begun issuing marriage licenses in Montgomery because "at the time, Chief Justice Moore had not started bloviating on this topic, and so there was no reason to defy. I didn't ask for his opinion, and frankly didn't need it. The federal judge told us what we needed to do, and to me that was as clear-cut as I needed in order to make a decision."
"I think that's what places Alabama a step backwards in some people's eyes when they see things like this happen, the defiance and the resistance," Reed said. "I think we're on the front side of this. And we're on the right side of history where this is concerned."
As for Moore's invocation of the word of God, Wonkette's Evan Hurst joked that he never ceased to be amused by "all these new God laws that wingnuts make up, every time the Real Law tells them to go to hell." It is legally meaningless, and yet another indication that Moore's stance on gay marriage has little to do with legitimate constitutional concerns and a lot to do with drumming up an anti-gay storm among the state's religiously conservative voters.
If Moore continues to resist, he could face similar penalties to those he faced in 2004, when the state's Court of the Judiciary removed him from office for defying federal orders to remove a statue of the 10 Commandments outside the Alabama Supreme Court building. President Barack Obama told BuzzFeed News that he believed "the courts at the federal level will have something to say to him." Moore could also be setting up the state for costly lawsuits by LGBT couples who will actually be denied their rights by his made-up standoff between state and federal authority.
If this results in federal courts trampling on so-called Southern "traditions," so be it, writes the Miami Herald's Leonard Pitts. Among those, Pitts argues, was "the 'tradition' of a region arrogantly arrogating unto itself the right to decide whether and when it will obey federal authority."