In a notably provocative legal order Wednesday, Alabama Supreme Court Chief Justice Roy Moore issued an order directing Alabama probate judges to not issue any marriage licenses to same-sex couples.
Moore, himself an ardent opponent of marriage equality who has previously promised to resist the U.S. Supreme Court’s Obergefell ruling, explained in his order that it remains unclear if Obergefell applies beyond the four states directly involved in that case. He noted that the Eighth Circuit Court of Appeals and a district court of Kansas have both ruled that Obergefell did “not directly strike down the provisions” of other states’ bans on same-sex marriage, and thus a case brought by the Alabama Policy Institute (API) seeking to uphold Alabama’s ban remains unsettled.
Neither of these cases, however, support Moore’s suggestion that Obergefell is non-binding. The Eighth Circuit’s opinion does state that Obergefell does not directly apply to Nebraska, but it made this statement as part of a discussion about why that court retains jurisdiction over the case permitting it to rule in favor of marriage equality. Similarly, the district court in Kansas explicitly stated that “Obergefell is clearly controlling Supreme Court precedent.”
Nevertheless, Moore claims that these opinions create uncertainty about the legal status of marriage equality. “Whether or not the Alabama Supreme Court will apply the reasoning of the United States Court of Appeals for the Eighth Circuit, the United States District Court for the District of Kansas, or some other legal analysis is yet to be determined,” Moore wrote. “Yet the fact remains that the administration of justice in the State of Alabama has been adversely affected by the apparent conflict between the decision of the Alabama Supreme Court in API and the decision of the United States Supreme Court in Obergefell.”
Moore thus doubled down on that conflict, ordering that “Alabama probate judges have a ministerial duty not to issue any marriage license” contrary to the state’s constitutional and statutory bans on same-sex marriage.
This is the same order the Alabama Supreme Court issued last March, after a federal district court ruled against Alabama’s ban. It set up a chaotic scenario in which probate judges received conflicting orders from federal and state courts. Now, even more than then, it is clear Moore is flagrantly disregarding the Constitution’s “supreme law” to mandate his own law.
It is technically true that Alabama was not party to the cases the Supreme Court heard along with Obergefell, but this is not a technicality that justifies Moore’s action. The precedent of Obergefell applies to any other case in a U.S. court; whether the Constitution guarantees the right for same-sex couples to marry is no longer a legal question.
Any couple denied a marriage license under Moore’s order would likely find relief from a federal court quite quickly, but probate judges would once again face dueling court orders. Depending on how far Moore and the Alabama Supreme Court hope to extend their insurrection, they could hypothetically go as far as holding probate judges in contempt for issuing same-sex marriage licenses, but this would likely trigger quick intervention from the U.S. Supreme Court.
Moore is even contradicting Alabama state executives. In July, Attorney General Luther Strange declared that Obergefell applies to Alabama and that all state agencies would comply with it. Most probate judges have been doing just that.