On Wednesday, Alabama Supreme Court Chief Justice Roy Moore fired another shot in his personal war against marriage equality. He issued an order that instructed Alabama probate judges not to issue any marriage licenses to same-sex couples, because despite the fact that the U.S. Supreme Court has already announced to the world that those couples have a right to get married in this country, Moore and others like him continue to shake their fists in impotent pseudo-biblical rage.
According to Moore, Alabama’s Marriage Protection Act, which prohibits same-sex marriage, is still in effect, despite the Supreme Court’s ruling in Obergefell v. Hodges this summer finding similar bans in Kentucky, Michigan, Ohio, and Tennessee to be unconstitutional.
There’s still a marriage equality case pending in the Alabama Supreme Court. Until it decides that case, Moore seems to think the issue is up for grabs in the state.
It is true that a court ruling only binds the parties before the court to the lawsuit—even if, as with the marriage equality cases, similar lawsuits regarding the same issues are pending in courts around the country. “A judgment among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to the proceedings,” Moore wrote in his order Wednesday, and he’s correct.
But his is a technical argument that lacks any substance.
While the Supreme Court’s ruling in Obergefell addresses the constitutionality of the laws banning same-sex marriage in Kentucky, Michigan, Ohio, and Tennessee only—because those were the only states that were parties to that lawsuit—it is without question that same-sex marriage bans are unconstitutional in every state. That’s Supremacy Clause 101.
For those plaintiffs who had cases pending in states other than Kentucky, Michigan, Ohio, and Tennessee, all that was left to do after the Supreme Court declared same-sex marriage bans unconstitutional was to ask the judge in their respective courts for a judgment in their favor. In other words, they just had to file papers with whatever court their case was pending saying, essentially, “We win. Because Obergefell. The end.” Under normal circumstances, the judge would agree and grant judgment in their favor, accompanied by a ruling that says something like, “Same-sex marriage bans are unconstitutional. The U.S. Supreme Court said so in Obergefell. The end.”
But Moore seems to be hanging on to some delusion that there might be a legitimate legal argument for maintaining a same-sex marriage ban in Alabama. And he’s basing his delusion on two cases out of Nebraska and Kansas, both of which technically support his argument, but are ultimately of no use to him.
Both of the cases that Moore cites say that the Obergefell ruling directly invalidated the same-sex marriage bans only in the four states that were parties to the lawsuit. Score one for Moore! But both of those cases also say that Obergefell is the law of the land. Whoops. Sorry, Moore.
In the Nebraska case, Waters v. Ricketts, the state of Nebraska claimed that there was no need for the federal court to issue a ruling in the case because, in light of Obergefell, the case was moot. Since the Supreme Court had already said that same-sex marriage bans are unconstitutional, there was no longer an ongoing dispute that required a resolution, according to attorneys for the state of Nebraska. The court should just throw out the case.
The Eighth Circuit Court of Appeals disagreed that Obergefell mooted the case. Since the Nebraska law wasn’t at issue in Obergefell, a dispute between plaintiffs and the state as to whether Nebraska’s same-sex marriage ban was unconstitutional still existed. The Eighth Circuit sent the case back to the lower court and ordered the district court to enter a final judgment on the merits in favor of the plaintiffs. The same constitutional principles that rendered unconstitutional the laws of Kentucky, Michigan, Ohio, and Tennessee applied to do the same for Nebraska’s law.
The case out of Kansas, Marie v. Mosier, involved a similar situation. The plaintiffs wanted the court to rule on their claims—that Kansas’ same-sex marriage ban is unconstitutional—but the state of Kansas argued that that was unnecessary because the Obergefell ruling had rendered the case moot.
United States district court judge Daniel Crabtree disagreed with the state of Kansas and decided to enter a judgment in favor of the plaintiffs.
“To understand this conclusion, one must remember what was at issue in Obergefell, and what was not,” Crabtree wrote. “That case considered same-sex marriage bans enacted in Michigan, Ohio, Kentucky, and Tennessee. It did not rule, at least not directly, on Kansas’ ban against such marriages.”
“The Court’s job now is to apply Obergefell to the Kansas laws, and this Order does so. As one would expect, the Court holds that the Kansas ban against same-sex marriage also violates the due process and equal protection clauses of the Constitution.”
Moore’s suggestion that these two cases provide him some loophole to continue to deny same-sex couples equal protection under the law is absurd.
But Moore is no stranger to the absurd when it comes to the war he has been waging against marriage equality.
In January of last year, after a federal judge had struck down Alabama’s same-sex marriage ban, Moore wrote a letter on Supreme Court of Alabama letterhead informing Alabama Gov. Robert Bentley that the federal court order was invalid. His reasoning? The definition of marriage is biblical and therefore beyond the reach of the United States Constitution. Moore’s conduct prompted the Southern Poverty Law Center to file a judicial ethics complaint against him, which could result in formal ethics charges before the Alabama Court of the Judiciary. That court had removed Moore from the office of chief justice 12 years ago after Moore refused to comply with a federal court order to remove a Ten Commandments monument from the state judicial building. (Moore was later voted back in.)
When same-sex marriage was slated to begin in Alabama in February 2015, Moore issued an administrative order to all 68 probate judges in the state warning them that any judges who issued marriage licenses to same-sex couples would be in violation of Alabama law and face “action” by Alabama Gov. Robert Bentley.
And now citing “confusion and uncertainty” among the probate judges—confusion and uncertainty that Moore has directly caused by threatening probate judges who follow federal law by issuing licenses to same-sex couples—he has issued another order stating that probate judge have a “ministerial duty” not to issue marriage licenses to gay and lesbian couples.
“I am not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on the existing orders of the Alabama Supreme Court,” Moore wrote in his order. “That issue remains before the entire [Alabama Supreme] Court which continues to deliberate on the matter.”
In reality, he is at liberty to provide guidance and he knows this. The Constitution is the law of the land. It takes precedence over state law and state constitutions. Under the Constitution, same-sex marriage bans violate the 14th Amendment. That’s the law, plain and simple. Moore may not agree with it, but it is his duty to uphold it. If he can’t, he should find another job.