Chief Justice Roy Moore of the Alabama Supreme Court issued an order Wednesday that prohibits probate courts from granting marriage licenses to same-sex couples.
Moore issued an administrative order, which he said clarified that the U.S. Supreme Court’s June ruling in Obergefell v. Hodges that struck down laws banning same-sex marriage in Michigan, Kentucky, Ohio, and Tennessee did not automatically indicate the same for Alabama, which has some similar laws, reports The Times Daily.
“Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses,” Moore wrote. “Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.”
Nevertheless, recent developments of potential relevance since Obergefell may impact this issue. The United States Court of Appeals for the Eighth Circuit recently ruled that Obergefell did not directly invalidate the marriage laws of states under its jurisdiction. While applying Obergefell as precedent, the Eighth Circuit rejected the Nebraska defendants’ suggestion that Obergefell mooted the case. The Eighth Circuit stated: “The [Obergefell] Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee — not Nebraska.” Waters v Ricketts, 798 F.3d 682, 685 (8th Cir. 2015)… In two other cases the Eighth Circuit repeated its statement that Obergefell directly invalidated only the laws of the four states in the Sixth Circuit. See Jernigan v Crane,796 F.3d 976, 979 (8th Cir. 2015) (“not Arkansas”); Rosenbrahn v Daugaard, 799 F.3d 918, 922 (8th Cir 2015) (“not South Dakota”).
The United States District Court for the District of Kansas was even more explicit: “While Obergefell is clearly controlling Supreme Court precedent, it did not directly strike down the provisions of the Kansas Constitution and statutes that bar the issuance of same-sex marriage licenses ….” Marie v Mosier, 2015 WL 4724389 (D. Kan. August 10, 2015). Rejecting the Kansas defendants’ claim that Obergefell mooted the case, the District Court stated that “Obergefell did not rule on the Kansas plaintiffs’ claims.” Id.
Moore said he is anticipating that a pending case in the state Supreme Court must be decided before it was clear whether the U.S. Supreme Court’s ruling applied to Alabama.
As Breitbart News reported last March, Moore joined with a coalition of African-American pastors and other conservative leaders to defend the Texas constitutional ban against same-sex marriage.
In Texas—where Moore keynoted the event—the chief justice said states must stand up to the federal government.
“No court has the authority to redefine what God proposed in Genesis,” he said, arguing that the Constitution does not give federal courts precedent over domestic policy on family and marriage.
“I’m a judge and normally judges don’t speak out but if I should hold back my opinions I would consider myself guilty of treason toward my country,” Moore added.
Moore and Rev. Bill Owens, president of the Coalition of African-American Pastors (CAAP), called upon U.S. Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan to recuse themselves from the then anticipated decision by the high court on same-sex marriage. Both Ginsburg and Kagan had officiated at same-sex marriages prior to the ruling.
Owens and his coalition had been highly critical of attempts by both President Obama and then-Attorney General Eric Holder to portray the same-sex marriage movement as another civil rights campaign.
In February of 2015, Moore sent Alabama Gov. Robert Bentley a letter referring to federal court rulings on same-sex marriage “judicial tyranny.” He added that the Constitution does not give the federal government the power to “redefine marriage.”
In 2003, according to UPI, Moore was removed as chief justice for defying a federal court order banning a large Ten Commandments monument outside the state Supreme Court building.
“Justice Moore is intoxicated by his own sense of self-righteousness,” said Southern Poverty Law Center president Richard Cohen. “He doesn’t seem to understand that we’re a nation of laws, not of men.”