Wednesday, January 6, 2016

Scalia et al inspire Alabama Chief Justice's order to refuse same sex marriage licenses |

On May 21, 2015 federal judge Callie Granade issued a preliminary injunction ordering the defendant class of Alabama Probate Judges to abide by her ruling that the federal Constitution protected the right of same sex couples to marry.  But she stayed it pending decision in the Obergefell case then awaiting decision in the Supreme Court.  When the majority ruled in favor of same sex couples she promptly issued a clarifying order declaring the stay ended and that her order is binding.  The preliminary injunction order enjoins "any of the members of
the Defendant Class who would seek to enforce the marriage laws of Alabama
which prohibit or fail to recognize same-sex marriage."

But Alabama Chief Justice Roy Moore's order to judges to abide by the Alabama Constitution and refuse to issue same-sex marriage licenses is not quite the schoolhouse door stand many see.  Like C.J. Roberts and his fellow dissenters in Washington Moore sees Obergefell v. Hodges as an illegitimate decision.  Conservative legal intellectuals have raised a hue and cry to "combat judicial supremacy".  Illegitimate orders should be resisted as  Catholic uber conservative  Robert George  urged in his Call for Resistance signed by many of his fellow traditionalists.

Antonin Scalia is reported by George to have said (off the record) that "though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution."

 George led the charge after the bitter dissents in Obergefell v. Hodges, labeling the Supreme Court's same-sex marriage ruling the new Dred Scott:
Today we are faced with the same challenge. Like the Great Emancipator, we must reject and resist an egregious act of judicial usurpation. We must, above all, tell the truth: Obergefell v. Hodges is an illegitimate decision. What Stanford Law School Dean John Ely said of Roe v. Wade applies with equal force to Obergefell: “It is not constitutional law and gives almost no sense of an obligation to try to be.” What Justice Byron White said of Roe is also true of Obergefell: It is an act of “raw judicial power.”
Moore is technically correct: Alabama judges are sworn to uphold the Constitution of Alabama.  They are sworn officers of the State of Alabama.  C.J. Moore's Administrative Order addresses that.

Of course the Probate Judges are also obligated to uphold the Constitution of the United States of America.   They are subject to the jurisdiction of its courts which have spoken.  But at the heart of the resistance call is the message to obey only direct orders.  The Probate Judges will soon receive such orders.

Moore's order, like the Call for Resistance does not go so far as to urge that judges made party to actions refuse to obey federal court orders.  As Howard Wasserstein has observed at Prawfsblog the objectors have not taken that step toward insurrection. - gwc

Roy Moore says probate judges have duty to enforce same-sex marriage ban |

Chief Justice Roy Moore issued an order today saying that a ruling issued last March by the Alabama Supreme Court remains in effect and that probate judges "have a ministerial duty not to issue any marriage license contrary" to Alabama's law and constitutional amendment banning same-sex marriage.

In a four-page administrative order, Moore said the conflict between the state court ruling and the U.S. Supreme Court ruling in June has caused "confusion and uncertainty" among probate judges.

Moore said he issued the order today in his role as administrative head of the state court system. He quoted a state law that says the chief justice is empowered to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state."

Moore wrote that since the U.S. Supreme Court ruling that many Alabama probate judges are issuing marriage licenses to same-sex couples, while others are issuing licenses only to opposite-sex couples or not issuing licenses at all.

"This disparity affects the administration of justice in this state," he wrote.
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