An Alabama judge’s attempted refusal to let the United States Supreme Court have the final say on whether same-sex couples can marry – at least in his state – might be seen by many as a lost cause.
Then again, not many judges have been professional kickboxers or ride a horse to vote on Election Day.
Alabama Supreme Court Chief Justice Roy Moore is not your average judge.
On Wednesday, Judge Moore issued an administrative order declaring that “Alabama probate judges have a ministerial duty not to issue any marriage licenses” to same-sex couples. The Supreme Court’s June Obergefell decision legalizing same-sex marriage involved a case from a different federal circuit, so it does not apply in Alabama, Moore argues. Legal experts say that is a patently wrong interpretation of American law.
Moore isn’t likely to much care what those legal experts think. He’s been compared to a modern-day George Wallace, the former Alabama governor who made the iconic “stand in the school house door” in defiance of federal rulings to integrate schools.
For many Americans, the attempt to essentially rewrite law is puzzling. But for many in Alabama and the broader South, Moore is just the sort of man they want atop their highest courts – someone not inclined to bow to Washington and who openly admits that his highest law is the Bible.
“In the end, he doesn’t hold any hope of actually stopping any of these marriages. But the big question here is jurisdiction: Who has jurisdiction over defining the family? This is about state relevance,” says Shannon Bridgmon, a native Alabamian and a political scientist at Northeastern State University in Tahlequah, Okla.
Alabama has seen this dance from Moore before.
As a local judge in northeast Alabama, Moore was known for invoking prayer from the bench. In the early 2000s, in his first stint as chief justice, he was removed from office for refusing to obey a federal court order to remove a monument of the Ten Commandments he had erected on state grounds.
To some, Moore blurs the line between judge and politician.
“I think the big picture here is that law isn’t politics and politics isn’t the law,” says Ronald Krotoszynski Jr., a professor at the University of Alabama School of Law. “As a political matter, the chief justice can oppose Obergefell, argue it’s wrongly decided, and propose an amendment to the federal Constitution. But as the chief justice of Alabama, there’s no meritorious argument here.”
“It’s problematic, too, for an administrative judge to urge other state officials to defy the Supreme Court,” he adds. “We have a history of that…. There’s little daylight between former Gov. George Wallace’s admonition to state school board officials in the ’60s and Moore’s admonition to state’s probate judges yesterday.”
Clearly, Moore is not afraid of a fight, nor is he daunted by odds. In Montgomery, Moore adorns his office with busts of Robert E. Lee and Stonewall Jackson, which are there, he has said, because they are fellow West Point graduates, not Confederate icons. In Vietnam, he was known by fellow troops as “Captain America.”
After he was removed as chief justice by a state judicial panel in 2003, his election to return in 2012 was “vindication,” he said.
“Whether Moore thinks he can win is irrelevant, because he relishes being on the losing side of the fight,” writes Kyle Whitmire, a columnist for Alabama-based AL.com.
The broader stand for Southern states' rights against the Supreme Court is as old as the nation itself.
Spencer Roane, a member of the Virginia Court of Appeals, “railed against the authority of the federal Supreme Court over state courts,” wrote Professor Krotoszynski in The New York Times last year. “He repeatedly declined to implement federal decisions with which he disagreed.”
In the end, however, Supreme Court Chief Justice John Marshall prevailed.
What Alabamians think
Like Wallace before him, Moore can claim the winds of popular will at his back. In 2006, 81 percent of Alabama voters passed a constitutional amendment barring gays from marrying in the state. And voters returned Moore to the chief justice position in 2012, knowing his propensity to put his Christian faith above the law full well.
Danny Turley, a clerk at Shirley’s Bait and Tackle shop in Mobile, Ala., says he’s not “a big religious fanatic and all,” but he backs Moore’s biblical view of law. “If the Bible’s against it, I mean, if you believe in the Bible you can’t believe this and not believe the other,” he says. “You’ve got to be 100 percent one way or the other.”
Yet at deeper glance, support for Moore in Alabama appears nuanced. Moore ran for governor twice, failing badly both times. And in the same-sex marriage fight, both Gov. Robert Bentley and Attorney General Luther Strange have conceded.
“Voters in Alabama are comfortable with him making social stands, but they … might not be comfortable with him running a state budget or leading policy on other matters,” argues Professor Bridgmon at Northeastern State University. “And when you look at his vote margins, they’re hardly ringing endorsements, even in a state where there are zero Democrats who hold state office.”
Some voters question Wednesday’s order.
Moore’s stance “could be a personal thing that he wants to put into law, but the fact is he could've left it alone,” says Kathryn Schmidt, an employee at the Cloud Nine tattoo shop in Birmingham, who supports the federally recognized right to same-sex marriage. “As far as Alabamians, it’s funny, yeah, we’re in the Bible Belt of America and people think we are all super behind the times, but we’re all very forward thinkers, and I think the general consensus is that most people down here if they do have an opinion on gay marriage, they keep it to themselves, and the people who don’t keep it to themselves are the people you tell, ‘Yeah, get over it.’ ”
While probate judges in nine counties are not issuing marriage licenses – and have not for months – judges in the other 67 counties who were already marrying gay couples appear to be largely dismissing their administrative judge’s edict. Montgomery County probate judge Steven Reed tweeted: “Judge Moore's latest charade is just sad & pathetic. My office will ignore him & this.”