Rogue Alabama Chief Justice has no legal rationale

March 18, 2015 1:01 AM


Nancy Marcus

Alabama Supreme Court Chief Justice Roy Moore’s unauthorized, so-called “administrative order” to state officials instructing them to deny same-sex couples marriage licenses, in defiance of a federal court order (and Supreme Court order), continues to inspire vigilante behavior weeks later.

The continuing chaos from Moore’s “order” has been described by Moore’s colleague, Justice Michael Bolin, as the legal equivalent of a three-ring circus. Some state officials continue to cite Moore’s “order” as authority to refuse marriage licenses and, more recently, to deny adoptions, while others have returned to court seeking clarification of what should be settled law. In the meantime, ethics charges have, appropriately, been filed against Moore. This is not his first ethical fiasco; Moore was previously removed from the bench for disobeying a federal court order.

Although Moore has his defenders, there is nothing admirable about a state Supreme Court justice defying the rule of law. Court-watchers should not be blindsided by the rhetoric spouted by Moore defenders and followers. The law, quite simply, is not on his side.

Moore has failed to cite any legal authority allowing a unilateral “administrative order” in contravention of a federal judge’s order. Moore’s “order” was procedurally out of bounds – not connected with a case in his court, not agreed to by the Alabama Supreme Court and not authorized by Alabama procedural laws governing administrative orders.

Even if Moore had such authority, his justifications fail on the merits.

First, Moore attempts to hang his vigilante hat on misguided notions of state powers. For example, he has maintained in recent interviews that “there is no law right now that overcomes the Alabama Constitution,” calling the federal court orders a “federal intrusion into state sovereignty.” In a brazen display of disrespect toward the U.S. Supreme Court, he even warned that he would not follow a Supreme Court mandate ordering same-sex marriages.

Such a stubborn state-supremacist stance blatantly conflicts with basic constitutional principles. The U.S. Constitution’s Supremacy Clause and Fourteenth Amendment provide that state laws may not violate the federal Constitution and must protect all citizens equally. The Supreme Court spelled out in the school desegregation case Cooper vs. Aaron that states, including “the officers or agents by whom (the state’s) powers are exerted,” must comply with Supreme Court decisions even if they disagree with them.

Second, Moore has contended that Judge Callie V. Granade “does not have power over anything other than what’s before her court.” Moore’s defenders have elaborated upon this in two ways. Some argue that a federal court injunction may provide only relief to those specific plaintiffs who brought the case, not statewide relief. Others argue that injunctions bind only those defendants explicitly named.

Both contentions are wrong under long-established rules of law.

Federal rules governing injunctions explicitly allow orders directed at both the named defendant state officials and those acting in participation with them. Such broad injunctions are also explicitly allowed under the Declaratory Judgment Act. The Supreme Court and lower federal courts have commonly issued broad injunctions against unconstitutional laws. Ensuring that a federal court may “invalidate” an unconstitutional law in each of its applications is the whole point of such constitutional challenges. Even Justices Antonin Scalia and Clarence Thomas, while dissenting from the Supreme Court’s order allowing same-sex marriages in Alabama to proceed, recognized the customary practice of enjoining laws ruled unconstitutional; they argued only that courts should exercise discretion to “stay” those injunctions pending appellate review.

Thus, the valid federal injunction stopping enforcement of Alabama’s same-sex marriage ban validly extends to the state officials charged with issuing marriage licenses.

Moore similarly cannot justify limiting legal protections only to those plaintiffs who brought the case in the first place.

Failing to protect everyone equally within a federal court’s jurisdiction from unconstitutional state laws would create a serious Equal Protection problem. Although injunctive relief is limited to cases where plaintiffs establish the likelihood of ongoing harm, under that standard, the ongoing actions by Moore and other Alabama officials who continue to harm Alabama citizens by disobeying the federal orders establish the need for a broad injunction.

By thumbing his nose at federal court orders, Moore and his followers call to mind George Wallace standing in the schoolhouse door, blocking access of black schoolchildren to the equal protection of the law in violation of federal orders. The Constitution did not tolerate unequal protection last century, nor does it this century.

Moore would rather these constitutional principles not govern his actions, but they must. The United States Constitution, not the whims of Roy Moore, is the supreme law of this land.

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