Alabama Chief Justice Roy Moore orders state's judges to keep enforcing gay marriage ban

Stretch

, --January 7, 2016

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On the one hand you have to love the defiance Roy Moore shows in telling Alabama judges, boy howdy, you do still have to enforce the gay marriage ban - and I'm happy to clear up any confusion that resulted from that U.S. Supreme Court ruling suggesting otherwise. But however much you may sympathize with his cause (and I certainly do), come again on what exactly is the legal basis for this? What's confusing about SCOTUS striking down any and all state laws banning gay marriage? Legally flimsy? Absolutely. Lacking in any sort of constitutional rationale? You bet. But confusing? I want to see it, but I don't:
In a four-page administrative order, Moore said the conflict between the state court ruling and the U.S. Supreme Court ruling in June has caused "confusion and uncertainty" among probate judges. Moore said he issued the order today in his role as administrative head of the state court system. He quoted a state law that says the chief justice is empowered to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state." Moore wrote that since the U.S. Supreme Court ruling that many Alabama probate judges are issuing marriage licenses to same-sex couples, while others are issuing licenses only to opposite-sex couples or not issuing licenses at all. "This disparity affects the administration of justice in this state," he wrote. Rep. Patricia Todd, D-Birmingham, state director of the Human Rights Campaign, which advocates for civil rights for gays, lesbians and transgender people, said Moore is the one who has caused confusion for probate judges. She said the issue is settled by the U.S. Supreme Court and Moore doesn't get to "pick and choose" which Supreme Court rulings to adhere to.
It would be one thing if Moore tried to make a Tenth Amendment/nullification argument. I'm not as sold on that concept as a lot of you are, but at least you could get your brain around the reasoning if Moore took that tact. But what's with claiming the state's judges are all throwing up their hands, saying, "Gosh, what do we do now?" As much as I don't want to give credence to Rep. Todd's insistence that it's Moore creating the confusion (if in fact there really is any), it's hard to see it any other way. If Moore has simply decided to be a dead-ender on gay marriage, SCOTUS or no SCOTUS, I stand and applaud. But I would expect more of him than some weird claim that everyone is confused about what to do. I think judges know what a Supreme Court ruling striking down yoru law means. It means it no longer exists. At the very least, if Moore thinks Alabama should not have to follow the ruling, he needs to articulate a legal/constitutional rationale for why. As it stands, he's acting as though it should be obvious to everyone that adherence is optional. Since that is decidedly not the norm within America's court structure, there's a real ring of disingenuousness in Moore's behavior. I'd love to champion a Roy Moore-led challenge to SCOTUS on this issue. It's badly needed. But first he has to come up with one that's worth championing - which is not what this is.

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Dan Calabrese——

Dan Calabrese’s column is distributed by HermanCain.com, which can be found at HermanCain

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