Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at claims from an Alabama judge that harken back to the 1950s civil rights school desegregation decisions.
THE STATEMENT AT ISSUE:
“I am dismayed by those judges in our state who have stated they will recognize and unilaterally enforce a federal court decision which does not bind them. I would advise them that the issuance of [marriage] licenses [to same-sex couples] would be in defiance of the laws and constitution of Alabama. Moreover, I note that ‘United States district court decisions are not controlling authority in this court,’ [citing a 2009 decision of the Alabama Supreme Court]. See also [a 2008 state Supreme Court ruling] ‘This court is not bound by decisions of the United States Courts of Appeals or the United States District Courts.’ As chief justice of the Alabama Supreme Court, I will continue to recognize the Alabama constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment.”
– Alabama Chief Justice Roy S. Moore, in a letter January 27 to the state’s governor, Robert Bentley, urging him to join in an effort to “stop judicial tyranny and any unlawful opinions issued without constitutional authority.” The chief justice was reacting to two rulings by a federal District Court judge in Mobile, striking down the state’s ban on same-sex marriage.
WE CHECKED THE CONSTITUTION, AND…
For most of the life of the U.S. Constitution, there has been no doubt that both the courts at the federal level and those at the state level each have power to interpret what that Constitution means. There is, though, only one court – the U.S. Supreme Court – that has the final say on constitutional interpretation. And, when it makes such a decision, the Supremacy Clause in Article VI makes clear that the result is “the supreme law of the land” and no contrary state law can stand.
So, as of now, the state courts in Alabama are free to go their own way on an issue under the national Constitution even though a federal judge sitting in that state has decided that question. The issue is same-sex marriage. A case is now working its way through state courts on whether a state constitutional ban on such marriages violates the federal document. That is occurring simultaneously with the unfolding of two cases before a federal judge in Mobile. District Judge Callie V.S. Granade ruled the state ban unconstitutional.
Sooner or later, the separate case in state court may reach the Alabama Supreme Court. When it does, the reception it will get – at least from the chief justice of that court – is already quite clear. Chief Justice Roy S. Moore is now on record in public as indicating that Alabama’s ban must remain intact, no matter what the Mobile jurist thinks about it.
If that is what happens, it probably would come as a shock to much of America – although Judge Moore has a well-developed reputation for being an iconoclast who views law in his own special way. His actions sometimes are a reminder of the “massive resistance” in the South to the school desegregation decisions of the Supreme Court and lower federal courts.
But, on his point that the state courts do not have to follow the lead of a federal trial or appeals court on any issue of law, the chief justice is quite right. That is one of the oddities of a divided court regime – a federal system and a separate and quite independent state system.
It certainly is in keeping with the view of those Founders who, while creating a strong national government, did not want to destroy the state governments. The 10th Amendment was among the first changes made in the Constitution and that amendment, among other things, goes a long way to protect the sovereignty and the dignity of the states. It may fairly be said that the addition of that amendment was probably made necessary by the demands back then for something like it, demands that were a prominent feature in the state conventions that ratified the Constitution.
Chief Judge Moore, although right on the basic independence of the state judiciary, may well speak for few officials in state government in saying that it is “judicial tyranny” for a federal court to issue a decision striking down a provision of a state constitution. The 10th Amendment does not deny the authority of the federal courts to decide constitutional questions.
There is, of course, a significant body of law that requires the federal courts to show respect for the independence of the state courts. This goes by the name of “the law of abstention,” a series of Supreme Court rulings suggesting that, in some circumstances, a federal court should avoid deciding a case before it if a state court is already working on that issue. But those precedents do not prohibit the federal courts from enforcing the Constitution, even when doing so nullifies a sovereign act of a state government or of its people.
And, while decisions by the federal judge in Mobile nullifying Alabama’s ban on same-sex marriage do not actually bind any state court pondering the same question, such a federal court ruling, if directed to state officials, must be obeyed by them. If a state official has been properly sued in federal court, and is found to have violated the national Constitution, a federal judge has ample authority to order such an official to stop the violation. That is exactly what the Mobile federal judge did this week.
True, those officials might find themselves in something of a legal dilemma if a state court were to uphold Alabama’s same-sex marriage ban and order those officials to go on enforcing the ban, and that dilemma could have the appearance of a constitutional federal-state crisis.
The only place where such a constitutional crisis could be ended would be the Supreme Court. Its authority to say what the Constitution commands would settle the matter. Even Chief Judge Moore, in his defiant comment about the same-sex marriage rulings, did not suggest that the state courts could refuse to obey the Supreme Court.
(Note: The Southern Poverty Law Center, a liberal legal advocacy group, has filed a formal ethics complaint against Chief Justice Moore with the state Judicial Inquiry Commission, seeking his removal from the bench. The complaint notes that he was removed from the state court in 2003 for an ethical violation based upon defiance of the Constitution regarding the display of the Ten Commandments. After that, he ran for election anew, and was returned to the chief justiceship.)
