Alabama’s Chief Justice Defies Federal Court’s Gay Marriage Ruling

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jan 28, 2015

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The Chief Justice of Alabama’s highest court raised a controversy this week by openly defying a recent ruling from a lower federal court that declared the state’s ban on gay marriage to be unconstitutional. Arguing that a lower federal ruling does not have jurisdiction over how Alabama defines or recognizes marriage, Judge Roy Moore’s open defiance to the federal judiciary raises an interesting legal issue about the intersect of federal and state court systems.

Federal Court Shoots Down Alabama Gay Marriage Ban

A federal ruling from U.S. District Judge Callie Granade kicked off the confrontation last week by overturning Alabama’s prohibition on gay marriage.  Judge Granade ruled that the Alabama Marriage Protection Act was unconstitutional, writing “that the institution of marriage itself is a fundamental right protected by the constitution,” before finding insufficient the state’s argument that it had a legitimate interest in banning gay marriage in order to preserve the “ties between children and biological parents.” The ruling joined the growing ranks of federal court decisions which has found gay marriage bans irrational, discriminatory, without legal support, and in violation of the Due Process and Equal Protection Clause of the Constitution. 

As is the nature of the beast, Judge Granade’s gay marriage decision was not universally welcomed. Alabama’s House Speaker Mike Hubbard took the judge to task by criticizing the power a federal judge had over state law in a statement, “It is outrageous when a single unelected and unaccountable federal judge can overturn the will of millions of Alabamians who stand in firm support of the Sanctity of Marriage Act … The Legislature will encourage a vigorous appeals process, and we will continue defending the Christian conservative values that make Alabama a special place to live.”

While Hubbard’s rhetorical rebuke of a federal court decision that finds a gay marriage ban unconstitutional is nothing new, another Alabama elected official has provided a unique twist to the issue by encouraging the state judiciary to disregard the federal order.

Alabama Chief Justice Defies Federal Gay Marriage Ruling

Chief Justice Roy Moore, a staunch religious conservative who has had previous run-ins against federal authority over the forced removal of the Ten Commandments from public buildings, wrote a letter to Alabama Governor Robert Bentley encouraging resistance to the “judicial tyranny and any unlawful opinions issued without constitutional authority.” While Justice Moore, who has gone on record saying that gay marriage is evil, is motivated by his religious beliefs, his argument is peppered with reference to the constitutionally mandated separation of federal and state authority, and has raised interesting debate among legal academics about the legitimacy of a state’s refusal to comply with a federal court ruling.

In his letter to Governor Bentley, Justice Moore begins by noting that the Constitution does not confer upon the federal government, particularly the federal judiciary, “the authority to redefine the institution of marriage,” which, in Alabama, is defined Biblically: “a sacred covenant, solemnized between a man and a woman.” Moore went on, “The Supreme Court of Alabama has likewise described marriage as ‘a divine institution,’ imposing upon the parties ‘higher moral and religious obligations than those imposed by any mere human institution or government.’” Thusly Alabama’s law makers have legislated that, “a union replicating marriage of or between persons of the same sex … shall be considered and treated in all respects of having no legal effect in this state.”

State law sufficiently established, Justice Moore continued that the federal judiciary has no authority to use the “specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution” as justification to impose same sex unions on the state of Alabama. Justice Moore quoted Thomas Jefferson’s 1825 letter to William Branch Giles to caution against “the rapid strides with which the federal branch of our government is advancing towards the usurpation of all the rights reserved to the States.” Concluding that the State Constitution, and morality, of Alabama had fallen under an attack that “has no basis in the Constitution,” Justice Moore encouraged the Governor and state probate judges to continue to refuse recognition of gay marriages and openly defy Judge Granade’s order.

Conflict between Federal Courts and State Law

Although Justice Moore’s letter to Governor Bentley doesn’t fully spell out a legal argument, his ultimate question of whether the federal judiciary has the authority to overturn state law is not to be entirely without merit. The Supreme Court unquestionably has the authority to determine whether or not state laws are constitutional, but the relationship between lower federal courts and state courts is closer to parallel in many respects, and some scholars have argued that Justice Moore’s position is worth exploring. 

Ultimately, while argument can be made for Justice Moore’s stance due to the murky waters of the relationship between lower federal courts and state courts, the Alabama Chief Justice’s castle is more likely built upon theoretical and rhetorical sand than firm legal stone. A federal court has declared Alabama’s gay marriage ban to be a violation of the federal constitution – a document which the state has no authority to interpret or defy – and, Justice Moore’s harangue against the tyranny of the federal judiciary notwithstanding, the legal argument for a state to defy federal order on a constitutional question seems more academically interesting than convincing.

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