Alabama Chief Justice Roy Moore is out of a job — again.
On Friday, the Court of the Judiciary issued a ruling concluding that Moore was guilty of six ethics charges because of the way he instructed Alabama’s probate judges to ignore Obergefell, the federal marriage equality ruling. He has been suspended without pay until the end of his term in January of 2019.
The last time Moore was found guilty for similar charges was in 2003, when he refused to comply with a federal court order requiring him to remove a monument of the Ten Commandments that he had installed in the state courthouse. That time, the panel of judges removed him from his job entirely. Then, he ran for the position again in 2012 and Alabamans elected him back.
Moore’s opposition to marriage equality was abundantly clear throughout the cases brought forth in Alabama in both state and federal court. What got him in trouble, however, was an order he issued in January of this year — six months after Obergefell became the law of the land. In it, he wrote that “it is ordered and instructed” that Alabama probate judges “have a ministerial duty not to issue any marriage license” to a same-sex couples. In other words, they should continue to violate the orders of the U.S. Supreme Court.
Moore argued in defense that his order was merely a “status update,” and that since the order said he was not providing any guidance on Obergefell, he wasn’t actually “ordering and directing” the probate judges to do anything. The panel rejected those arguments as not being “credible.” A footnote highlights an argument that the Judicial Inquiry Commission (JIC) actually made in its case against Moore: “A disclaimer that one is not doing something is only true if one, in fact, does not do that something.”
The panel pointed out that he tried to make the exact same arguments in 2003 with regard to not moving the Ten Commandments monument, when he said, “I didn’t say I would defy the court order. I said I wouldn’t move the monument.” Of course, just as Obergefell made clear that same-sex couples must be allowed to marry in every state, the ruling in that case specifically ordered him to move the monument. By doing the opposite, he was violating the order.
Amusingly, the Court even used his own lawyer against him. Liberty Counsel chair Mat Staver — perhaps most infamously known as Kim Davis’ lawyer — sent an email to Liberty Counsel’s lists the same day Moore issued his order interpreting it as Alabama’s courts “standing up against the federal judiciary.” Moore objected to the email being used, correctly stating that Staver was not yet his lawyer at that time, but the panel pointed out that it doesn’t really matter. Staver’s email was simply the perfect example of a licensed attorney drawing the same incriminating conclusion that Moore was instructing the state’s probate judges to ignore a Supreme Court ruling.
“A judge does not issue a ‘status update’ that ‘orders and directs’ that a law remain in place,” the panel wrote. “Rather, a judge ‘orders and directs’ individuals to do something: in this instance, to comply with law [Alabama’s now-unconstitutional constitutional amendment banning same-sex marriage] that is in ‘full force and effect.’”
The panel concluded that “Moore’s use of caselaw in the order was incomplete, misleading, and manipulative.” The clear purpose of the order was to “order and direct the probate judges — most of whom have never been admitted to practice law in Alabama — to stop complying with binding federal law until the Alabama Supreme Court decided what effect that federal law would have.”
It also noted that this was the second time that he’s been charged with ‘taking actions grossly inconsistent with his duties,” charges that in both instances resulted in “a lengthy, costly proceeding for this court, the JIC, and, most unfortunately, the taxpayers of this State.” In addition to being suspended without pay, Moore “is also taxed with the costs of this proceeding.”
Moore is appealing the decision to the Alabama Supreme Court. He will not be able to run for another term in 2018, because he will have surpassed the age limit for the position, which is 70.
UPDATE: This post has been updated to correct that Moore will not be able to run again in 2018 because of the state’s age limits.