Shortly before close of business on Thursday, U.S. District Judge Callie V. S. Grande ruled that a local Alabama official must issue marriage licenses to same-sex couples—a direct response to recent actions by the state’s outspoken chief justice.
In late January, Granade issued an order finding the Alabama same-sex marriage ban amendment unconstitutional and enjoining the Alabama attorney general from enforcing it, with a 14-day stay for the chance to appeal.
But after the U.S. Supreme Court denied the attorney general’s appeal to put the marriages on hold, Alabama Chief Justice Roy Moore gave an order to probate judges not to issue same-sex marriage licenses.
Today’s ruling applies only to Don Davis, the local probate judge named in the case, but it nevertheless sends a message to judges statewide that they should defer to federal courts.
That may be hard to swallow for Moore, who has defended his view that the state’s same-sex marriage ban is still valid in an interview with CNN’s Chris Cuomo on Thursday morning.
With no definition of marriage in the federal constitution, Moore argued that the 2006 Sanctity of Marriage amendment in the Alabama constitution could not be struck down by federal judges.
Moore explained to Cuomo that “the opinion of a federal judge cannot mandate to state courts how they should judge under the law.” He said that he would continue to uphold the ban, regardless of how federal courts rule.
Moore also argued that the U.S. Supreme Court’s definition of marriage is and always has been of a man and a woman. In the landmark case Loving v. Virginia, for example, the Court ruled that a Virginia ban on interracial marriage was in violation of the constitution’s Due Process and Equal Protection clauses.
While some same-sex marriage advocates have pointed to this case to demonstrate the Court’s power to hold a state law limiting the fundamental right of marriage unconstitutional, Moore pointed out that Loving declared marriage “the right of free men and women to enter in the pursuit of happiness.”
It should be noted that the majority opinion in Loving does not say “free men and women” but instead says “free men.” Still, Moore uses this argument to claim that these unalienable rights cannot be taken away or mandated by the state.
At one point, the chief justice even turned to an obscure 1885 ruling in Murphy v. Ramsey, in which the Court referred 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.”
Cuomo countered that these rights can, in fact, be taken away, using the example of slavery to show that the Court could alter an existing property right. Moore answered by citing the dissenting opinion of Justice Curtis from Dred Scott v. Sanford, which stated that the political opinions of the Court should not guide the Justices in their decisions.
For his part, Moore insisted that his own political opinions were not guiding his actions. When Cuomo raised the issue, Moore adamantly refuted the claim, saying, “This is not about my feelings; it’s about the law.”
Of course, Moore is no stranger to ideological battles. In 2003, he was removed from the Alabama Supreme Court by an ethics committee after his fight to keep a monument to the Ten Commandments in the Alabama Judicial Building. A decade later, he reclaimed the seat.
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