Court Jester

Alabama Supreme Court Chief Justice Roy Moore’s Antics May Seem Buffoonish, But The People Hurt By His Policies Aren’t Amused

Keith Ingram and his partner, Albert Pigg, wanted to be the first same-sex couple to legally marry in the state of Alabama.

They rose early and landed a spot at the head of the line when the Houston County administration building in Dothan opened Feb. 9, but before they could receive a marriage license they got some devastating news: Their local probate judge said he would not give a license to gay couples – or anyone else, for that matter.

“We were devastated when we were not able to get a license that Monday,” Ingram told Church & State. “We were so excited that we would finally be able to marry in my hometown. All those happy thoughts were crushed in an instant.”

Houston County Probate Judge Patrick Davenport denied Ingram and Pigg a license in response to a directive from Alabama State Supreme Court Chief Justice Roy Moore, who instructed probate judges not to grant marriage licenses to same-sex couples under a peculiar legal theory that probate judges don’t have to listen to the state attorney general.

“As independent constitutional officers of the judicial branch of government who are directly elected by the people and shielded from executive influence by Sections 42 and 43 of the Alabama Constitution, the judges of probate are neither beholden to the [Alabama] Attorney General for their offices nor subject to his control in the execution of their duties,” Moore wrote Feb. 3.

As a result, probate judges are not required to issue marriage licenses to gay couples, Moore insisted in a legal document.

To observers, Moore’s antics looked like simple defiance of a federal court ruling. Same-sex marriage became legal in Alabama in February thanks to a ruling by U.S. District Judge Callie V. Granade.

Granade had earlier struck down a provision added to the Alabama Constitution that banned same-sex unions. Both a federal appeals court and the U.S. Supreme Court later refused to stay that ruling, clearing the way for gay couples in the state to wed.

At first, most Alabama probate judges refused to accept that marriage equality had become a reality deep in the heart of Dixie. With Moore’s blessing, at the height of the rebellion as many as 44 of Alabama’s 67 counties defied the federal ruling and refused to issue marriage licenses to same-sex couples. The numbers have fluctuated since then in light of developments.

No one expected marriage equality to be implemented smoothly in Alabama, which some political analysts say is the most conservative state in the nation. But in this case the rebellion was especially significant because of its leader: Roy Moore is a longtime foe of church-state separation and a hardcore Religious Right activist. Groups like Americans Uni­ted have tangled with Moore in the past.

Americans United quickly geared up for the new fight. Thanks to AU’s involvement, three same-sex couples who had been denied the right to wed in three different counties were eventually able to secure marriage licenses. Unfortunately a fourth couple, Ingram and Pigg, were, as this issue of Church & State went to press, still waiting for the news that they will be able to legally marry.   

Moore’s war began in January with a warning shot. Just four days after Granade’s initial decision, Moore encouraged Alabama Gov. Robert Bentley to join him in opposing same-sex marriage, making the bizarre argument that federal court rulings don’t apply to Alabama.

"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,” Moore wrote to the governor Jan. 27. “I ask you to continue to uphold and support the Alabama Constitution with respect to marriage, both for the welfare of this state and for our posterity. Be advised that I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority.”

AU wrote to Bentley the next day and urged him to ignore Moore. Bentley, who opposes same-sex marriage, didn’t respond to Moore publicly but did tell the media that he would not punish any probate judges who issued marriage licenses to same-sex couples.

In his letter to Bentley, Moore pressed his strange legal theory – a concept that he thinks justifies a state’s refusal to recognize most federal court decisions. The idea, critics say, comes straight from the 19th Century.

“The Constitution has not delegated to the federal government the power to redefine the institution of marriage,” Moore wrote. “The 10th Amendment states that all power not delegated to the United States is ‘reserved to the states respectively, or to the people.’ By redefining marriage, the federal courts – without any authority in the Constitution – upend the most hallowed institution in human history.”

Americans United was swift to respond. In its letter to Bentley, AU cautioned: “Justice Moore’s Tenth-Amendment-nullification arguments are relics straight from the Civil War, embraced only by inhabitants of the deranged right-wing fever-swamps in which the Justice has mired himself. Even a first-year law student knows that the requirements of the U.S. Constitution trump state law, and you would do well to disregard the Chief Justice’s ramblings.”

But Americans United did not stop there. On Feb. 10, the day after same-sex marriage became legal in Alabama, AU placed a half-page advertisement in the Montgomery Ad­ver-       t­iser that explained, once again, why Moore was wrong and offered representation to any same-sex couples that had been denied a marriage license by a probate judge in Alabama.

“Roy Moore is wrong! He has deliberately misinterpreted the law,” warned AU’s ad.

The advertisement also cautioned probate judges who do not comply with federal orders: “You will be sued. You will lose. You will face steep attorney’s fees.”

AU promoted the ad through social media, and Slate magazine ran a story about it, which people shared on Facebook and Twitter. The campaign was effective almost immediately. Ingram contacted Americans United that same day, and couples in three other counties – Baldwin, Barbour and Lauderdale – soon followed suit after they were denied marriage licenses as well.

The next day, Americans United attorneys warned individual probate judges to respect federal rulings concerning same-sex marriage.

“[Y]our obligation to comply with the federal Constitution – which has now been interpreted to forbid discrimi­nation against same-sex couples with respect to the issuance of marriage licenses – must take precedence over any contrary state laws or obligations,” read the letter. “As administrative head of the Alabama judicial system, the Chief Justice is empowered to take appropriate action in administering that system, but he is assuredly not empowered to contravene the federal constitution or to direct others to do so.”

Given Moore’s history, his action was not a surprise. Moore, a West Point graduate and former military police officer during the Vietnam War, is known as the “Ten Commandments judge” for his one-time refusal to remove a Decalogue display from outside the Judicial Building in Montgomery. In 2001, Americans United, the American Civil Liberties Union of Alabama and the Southern Poverty Law Center successfully sued Moore over his attempt to merge church and state. A fed­eral court struck down the display in 2002, a ruling that was later upheld by the 11th U.S. Circuit Court of Appeals.

Moore nonetheless attempted to defy the ruling, which resulted in his impeachment and removal from the court in 2003.

Moore spent much of the rest of the decade speaking at Religious Right events and self-publishing his poetry. (A sample from one: You think that God’s not angry, that our land’s a moral slum?/How much longer will it be before His judgment comes?/And how can we face our God, from Whom we cannot hide?/What is left for us to do, but stem this evil tide!”)

Moore also ran for governor in Republican primaries in 2006 and 2010, faring poorly both times. In 2012, he ran for his old job as chief justice and was elected. 

Once back on the bench, Moore wasted no time picking a “culture war” fight. His dismissive attitude toward the First Amendment was visible, for example, in his concurring opinion in Hicks v. Alabama, a 2014 decision that upheld the conviction of a woman charged with child endangerment for using chemical substances during her pregnancy. In his opinion, Moore offered a religious basis for his decision.

“I write separately to emphasize that the inalienable right to life is a gift of God that civil government must secure for all persons – born and unborn,” Moore wrote.

When Moore isn’t crafting constitutionally baseless opinions, he is shouting about the non-existent Pandora’s Box he thinks legalized gay marriage would open.

“You’re taking any definition of a family away,” he told the Associated Press (AP) Feb. 22. “When two bisexuals or two transgendered marry, how large is that family? Can they marry two persons, one of the same sex and one of the opposite sex? Then, you’ve got a family of four or how many?”

Moore also maintains a convoluted idea of judicial authority in this country. He has insisted that federal courts don’t have the authority to make decisions for a state, with, perhaps, the exception of the U.S. Supreme Court – although he has issued conflicting statements on that question.

“You’ve seen that in this case where you have one federal judge who is reaching out and trying to bind the whole state,” he told the AP. “It is improper.”

But Moore later conceded that a Supreme Court decision would force his hand. “The ruling of the Supreme Court would bind the state courts,” he said. “That’s the law. That doesn’t make the Supreme Court right in making such a decision.”

Despite his convoluted stunts to prevent same-sex marriage in Alabama, Moore apparently does not see himself as a bigot.

“I’ve had many friends who are homosexual,” Moore said in a Feb. 10 interview with Bloomberg Politics. “I’ve treated people just like other people. This is not about how I treat people, or how I go to a wedding or a marriage or anything. It’s about the constitution of Alabama and the Constitution of the United States.”

            But when asked if he would attend a same-sex wedding, Moore replied: “I would not go to a same-sex wedding. No.”

            Whether Moore would actually respect a ruling by even the highest court in the United States remains unclear. He told Bloomberg News that he would never uphold any decision legalizing same-sex marriage in Alabama and that he would possibly be willing to go to jail to make his point. But, it seems, he backed away somewhat from that combative stance in later remarks to the AP.

            Unfortunately, Moore has found a number of allies who share his extremist views – most importantly some probate judges. John Enslen, probate judge for Elmore County, told the Advertiser that, like Moore, he is willing to go to jail for his beliefs.

            “A federal court can sentence me to life in prison, and I will still never perform a so-called same-sex marriage,” Enslen said. “I hear people saying that I need to be on the right side of history. My reply to that is this: In the end, God is always on the right side of history. It was Sodom and Gomorrah that were on the wrong side of history.”

            Just days before same-sex marriages would be legal in Alabama, some citizens also rallied against the law. A group called Sanctity of Marriage Alabama held a gathering at the capitol in Montgomery to make its opposition known.

            Speakers at the event included Moore’s wife, Kayla, who heads the Foundation for Moral Law, which “exists to restore the knowledge of God in law and government and to acknowledge and defend the truth that man is endowed with rights, not by our fellow man, but by God!” The Southern Poverty Law Center reported that during the rally, gatherers prayed, sang and waved signs with messages like “81%” in reference to the percentage of voters who had approved Alabama’s same-sex marriage ban.   

Fortunately, some of this bluster was short lived. On Feb. 12, Granade struck a major blow to anti-equality activists when she ruled that a probate judge in Mobile County did not have the right to deny marriage licenses to same-sex couples. The ruling was seen as a strong signal to other probate judges in the state, and after it was issued, many other judges who were still holding out gave up their protest and began issuing licenses to same-sex couples.

By Valentine’s Day, judges in at least 50 of Alabama’s 67 counties had agreed to issue marriage licenses to same-sex couples, according to the civil rights organization Freedom to Marry.

But a few holdouts remained. Thanks to Moore’s activism and influence, it seems Ingram and Pigg may be among the last of the pioneering same-sex couples to get married in Alabama instead of the first.

Americans United’s clients in Baldwin, Barbour and Lauderdale counties have been able to obtain marriage licenses after the probate judges there dropped their formal efforts to stop same-sex marriages. But that doesn’t mean all the probate judges caved like dominoes. On Feb. 24, Americans United sent a letter to Tim Mitchell, probate judge for Marshall County, warning him of a possible ethics complaint that would be brought against him if he continued to deny marriage licenses for same-sex couples.

Houston County’s Davenport was still among the holdouts at the end of February, so Americans United sent him another warning letter. AU Legal Director Ayesha Khan said she is open to the possibility of an ethics complaint against Davenport, or possibly a lawsuit, if he continues his refusal to uphold the law.

“We are hoping that the letter convinces him to issue the licenses,” Khan told the news website AL.com.

But then, on March 3, the Alabama Supreme Court dropped a bombshell: Acting on a request from the Alabama Policy Institute and Alabama Citizens Action Program, two state-based Religious Right groups,  the state high court ordered a halt to all same-sex marriage licenses in the state.

The legal intervention appears to have been deliberately planned to sow confusion and intimidate the probate judges who had been granting licenses to same-sex couples. The Liberty Counsel, a national Religious Right group that operates out of Liberty University in Lynchburg, Va., masterminded the scheme. Since state judges in Alabama are elected, the state supreme court is conservative to the point of being reactionary. Liberty Counsel knew it would get a favorable hearing there.

In an order, seven justices of the Alabama Supreme Court vowed defiance.

“As it has done for approximately two centuries, Alabama law allows for ‘marriage’ between only one man and one woman,” wrote the majority. “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.”

The decision reads like something written by a Religious Right attorney. It claims that same-sex marriage will lead to polygamy or marriages between adults and minors, asserts that the primary purpose of marriage is procreation and argues that extending marriage to same-sex couples represents “a fundamental shift in the social fabric of America.” Throughout the opinion, the word “marriage” is put in scare quotes when used to refer to same-sex unions.

The ruling had the intended effect. In its wake, most probate judges in the state stopped granting marriage licenses to same-sex couples. Religious Right groups like the Family Research Council and the American Family Association applauded the move, but advocates of LGBT rights and church-state separation were appalled by the turn of events.

Interestingly, Moore’s name did not appear anywhere in the 7-1 decision. He recused himself from the matter given his well-publicized stance against same-sex marriage and has denied having a hand in the ruling, but it is difficult to imagine that his influence was not a factor.

Americans United and other groups pointed out that the matter is one for federal courts to resolve, not the Alabama high court. Days after the ruling, Americans United joined forces with the American Civil Liberties Union of Alabama, the National Center for Lesbian Rights and the Southern Poverty Law Center to file a motion in federal court to create a class-action lawsuit with the aim of securing a court ruling that would order all probate judges in the state to resume granting marriage licenses to same-sex couples.

“If Alabama officials thought we were going to sit back and allow them to deny same-sex couples their constitutional right to marry, they thought wrong,” AU’s Khan said in a media statement. “We are going to fight for these couples.” (The matter remained unresolved as this issue of Church & State went to press. Look for an update in the May issue.)

Back in Dothan, Ingram, who learned about Americans United through Facebook, said he is confident AU can ultimately resolve this matter “because they have fought a similar battle with Roy Moore before.”

But for now Ingram and Pigg remain in a sort of marriage limbo. Their predicament has spawned media coverage in The New York Times and even internationally in The Guardian. They remain hopeful and expect to be legally married soon.

“We plan to have a ceremony with close friends and relatives [once we get a license],” Ingram said. “This delay is only allowing us to plan a much more fabulous event on our wedding day!”