Analysis: Ala. Chief Justice Moore Loses Showdown with Supreme Court

Same-Sex "Marriage" Imposed by Federal Courts

By Rachel Alexander Published on February 9, 2015

Following a pattern it has taken in several other states, the U.S. Supreme Court issued an order this morning declining to temporarily stay the implementation of same-sex marriage in Alabama. Alabama Attorney General Luther Strange had asked the U.S. Supreme Court to postpone implementation of a federal district court judge’s order last month, until the high court rules later this year on whether gays have a constitutional right to marry. U.S. District Court Judge Callie V.S. Granade issued a ruling on January 23 that Alabama’s law, which defined marriage as involving one man and one woman, unconstitutional, and scheduled his ruling to go into effect this morning.

Alabama Chief Justice Roy Moore had attempted to block Granade’s ruling at the last minute, sending a memo to all probate judges Sunday night instructing them not to issue any licenses as they were incompatible with the Alabama Constitution. Moore wrote in an earlier memo that Alabama is not under the jurisdiction of any federal court other than the U.S. Supreme Court. However, with the U.S. Supreme Court stepping in this morning, it effectively ended much of the legal showdown between the state and federal courts.

Having the highest court’s blessing, Alabama officials began issuing marriage licenses to gay couples this morning. Alabama is now the 37th state where people of the same sex can legally marry. The high court’s refusal to postpone the order is an indication that it will likely rule in favor of a constitutional right to same-sex marriage later this year.

Justices Antonin Scalia and Clarence Thomas wrote dissents. It is not known how the other justices voted, since this information is not released when the Supreme Court rules on stays. Thomas criticized the majority’s decision as prematurely deciding the issue of same-sex marriage on the merits. He wrote, “This court looks the other way as yet another federal district judge casts aside state laws without making any effort to preserve the status quo pending the court’s resolution of a constitutional question it left open in United States v. Windsor,” referring to the court’s 2013 decision striking down part of the federal Defense of Marriage Act.

He went on to rebuke the court’s encroachment on federalism, “This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our . . . responsibilities. And, it is indecorous for this Court to pretend that it is. Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the states.”

Alabama Chief Justice Moore, an outspoken proponent of federalism and states’ rights, is known for a previous showdown with federal courts in the early 2000s, when he refused to follow a federal district judge’s order to remove a monument of the Ten Commandments from the courthouse. Moore was later ousted from office over the incident, but turned around and ran for office again, becoming Chief Justice a second time in 2013.  Judge Moore views Judge Granade’s order as unwanted, meddling federal intervention that defies the will of the people. In 2006, 81 percent of Alabama voters opposed a same-sex marriage initiative.

Since Moore acknowledges the supremacy of the U.S. Supreme Court, it seems unlikely that he will find a way to continue the showdown any further. The nation’s highest court has the sole authority to interpret the U.S. Constitution, and if there is a conflict between a state constitution and the U.S. Constitution, the latter prevails. It is reported that judges in some counties are refusing to issue the licenses, however, setting themselves up for lawsuits.

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