In 2003, a panel of judges unanimously removed Alabama Chief Justice Roy Moore from office after he refused to comply with a federal court order requiring him to remove a Ten Commandments monument Moore installed in the state’s judicial building. On Thursday, Moore, who was elected again as his state’s chief justice in 2012, announced that he’s prepared to thumb his nose at the Constitution again — this time over marriage equality. In an interview with CNN’s Chris Cuomo, Moore suggested that he may not “recognize” a Supreme Court decision holding that marriage equality is protected by the Constitution. Then he compared marriage equality to Dred Scott v. Sandford, an infamous pro-slavery decision.
Moore’s interview with Cuomo was long, and it meandered through a number of obscure Supreme Court decisions that are more than a century old. At one point, Moore rooted his argument against marriage equality in Murphy v. Ramsey, an 1885 decision which refers to “the union for life of one man and one woman in the holy estate of matrimony” as “the sure foundation of all that is stable and noble in our civilization.” Moore dismissed the idea that several Supreme Court decisions that are less than 130 years old, including the Court’s most recent gay rights decision striking down the Defense of Marriage Act in 2013, might have more relevance than an obscure opinion that was joined by two justices who would later go on to uphold racial segregation.
The interview climaxed, however, shortly after Cuomo asked Moore what he would do if the Supreme Court holds that the Constitution guarantees marriage equality in all 50 states. Moore responded that he will “do what courts should have done under Dred Scott. If it’s an unlawful mandate, you don’t have to recognize it, you can recuse from the case. You can dissent. You can dissent to the United States Supreme Court just like you can dissent to anything else.”
When Cuomo asked Moore again if he would follow the Supreme Court’s decision, Moore responded with a question: “would you have followed the order in Dred Scott saying that black people are property or would you have followed the order in Plessy v. Ferguson which said that separate but equal was the policy of the United States?”
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In fairness to Moore, if he actually does recuse himself from a future case involving marriage equality, that would actually be a more moderate position than he took in 2003. In 2003, Moore actively defied a federal court. Recusal, by contrast, would mean that he simply would not sit on any case involving marriage equality.
In the meantime, however, Moore has been perfectly willing to take the path of defiance. Moore directed state probate judges not to follow a federal district court’s order granting equal marriage rights to same-sex couples in Alabama. He claims, among other things, that this order is too narrow to encompass those probate judges. Should the Supreme Court side with marriage equality, however, their decision will be binding on all judges in the nation.