By Brandon Moseley
Alabama Political Reporter
Sunday, February 8, Alabama Chief Justice Roy Moore (R) ordered the Probate Judges of Alabama not to marry same sex couples. Chief Justice Moore wrote that the Probate Judges are not bound by Federal Judge Callie Granade’s order that Alabama’s State constitutional ban on same-sex marriage is unconstitutional and has in factor “ORDERED” the Probate Judges not to issue marriage licenses to same-sex couples on Monday, February 9.
Chief Justice Roy Moore wrote, “The Chief Justice is authorized and empowered to “take any such other, further or additional action as may be necessary for the orderly administration of justice within the state, whether or not enumerated in this section or elsewhere”; and WHEREAS, pursuant to Article VI, Section 139(a), of the Constitution of Alabama, the Probate Judges of Alabama are part of Alabama’s Unified Judicial System; and WHEREAS, pursuant to Article XVI, Section 279, of the Constitution of Alabama, the Probate Judges of Alabama are bound by oath to “support the Constitution of the United States, and the Constitution of the State of Alabama”; and WHEREAS, as explained in my Letter and Memorandum to the Alabama Probate Judges, dated February 3, 2015, and incorporated fully herein by reference, the Probate Judges of Alabama are not bound by the orders of January 23, 2015 and January 28, 2015 in the case of Searcy v. Strange (No. 1:14-208-CG-N) (S.D. Ala.) or by the order of January 26, 2015 in Strawser v. Strange (No. 1:14-CV424-CG-C) (S.D. Ala.); and WHEREAS, pursuant to Rule 65 of the Federal Rules of Civil Procedure, the aforementioned orders bind only the Alabama Attorney General and do not bind the Probate Judges of Alabama who, as members of the judicial branch, neither act as agents or employees of the Attorney General nor in concert or participation with him.”
Chief Justice Moore wrote, “The Probate Judges of Alabama fall under the direct supervision and authority of the Chief Justice of the Supreme Court as the Administrative Head of the Judicial Branch; and WHEREAS, the United States District Court for the Southern District of Alabama has not issued an order directed to the Probate Judges of Alabama to issue marriage licenses that violate Alabama law; and WHEREAS, the opinions of the United States District Court for the Southern District of Alabama do not bind the state courts of Alabama but only serve as persuasive authority,”….. “Neither the Supreme Court of the United States nor the Supreme Court of Alabama has ruled on the constitutionality of either the Sanctity of Marriage Amendment or the Marriage Protection Act: NOW THEREFORE, IT IS ORDERED AND DIRECTED THAT: To ensure the orderly administration of justice within the State of Alabama, to alleviate a situation adversely affecting the administration of justice within the State, and to harmonize the administration of justice between the Alabama judicial branch and the federal courts in Alabama: 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.”
Chief Justice Moore wrote, “Should any Probate Judge of this state fail to 5 follow the Constitution and statutes of Alabama as stated, it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests “the supreme executive power of this state,” Art. V, § 113, Ala. Const. 1901, to ensure the execution of the law. “The Governor shall take care that the laws be faithfully executed.” Art. V, § 120, Ala. Const. 1901. “‘If the governor’s “supreme executive power” means anything, it means that when the governor makes a determination that the laws are not being faithfully executed, he can act using the legal means that are at his disposal.”
Twice the people of Alabama have elected Judge Roy Moore (R) as the Chief Justice of their Alabama Supreme Court; but Moore has made many enemies in both the media and the legal community.
Chief Justice Moore has already been removed from office once, back in 2003 it was over his refusal to remove his Ten Commandments Monument from the Alabama Supreme Court Building.
The Southern Poverty Law Center (SPLC) and the Human Rights Campaign (HRC) have already filed a complaint asking for the removal of Chief Justice Moore.
The HRC wrote in a statement that the, “Alabama Supreme Court Chief Justice is an unethical demagogue who flouts his oath of office, disregards federal law and ignores the U.S. Constitution.”
The groups have filed an ethics complaint with the Judicial Inquiry Commission of Alabama seeking the removal of Chief Justice Roy Moore from the Alabama Supreme Court for violating the obligations of his office and recommend that Chief Justice Moore face charges in the Court of the Judiciary.
HRC Legal Director Sarah Warbelow said, “Chief Justice Roy Moore is lawlessly disregarding the binding ruling of a federal judge, and he’s encouraging other statewide officeholders to do the same. Moore’s personal opinions are not at issue here. As a lawyer and as a judge, he has an obligation to follow the law. If he refuses to do so, he should be removed from office.”
Moore is accused of “doubling-down on a reckless and dangerous pattern of flagrant disregard for the law by urging parties to ignore recent federal court rulings striking down the state’s ban on marriage equality for committed and loving same-sex couples. In an initial letter following the federal judge’s ruling, Moore urged the governor to ignore the ruling as non-binding “judicial tyranny.” Going above and beyond this defiant behavior, he then continued his own judicial activism by writing a letter and memorandum to the state’s probate judges claiming they are not required to follow the order.”
This constitutional crisis began when Federal Judge Callie Granade issued a ruling declaring that Alabama’s Marriage Protection Act and Sanctity of Marriage Amendment both violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.
Chief Justice wrote, “As Chief Justice of the Alabama Supreme Court, I am the administrative head of the judiciary of this State and it is my duty to advise the lower courts when their jurisdiction is threatened by an unlawful mandate by a federal district court. Our law and Alabama Supreme Court precedent are clear that lower federal and appeals court decisions carry only persuasive authority but are not binding on state judges also sworn to the United States Constitution, and who have equal authority to rule on such matters.”
Nobody knows what will happen on Monday. Some Probate Judges have said they will issue marriage licenses to same sex couples, others have said they won’t, while many others have announced that they have stopped issuing marriage licenses to anybody.
A judge who does not honor the order of Judge Granade is likely in defiance of a federal court order. A judge who does issue marriage licenses to same-sex couples is in defiance of the Chief Justice of the Alabama Supreme Court.