Alabama Chief Justice Roy Moore – ousted from office a decade ago when he refused to remove a Ten Commandments monument from state property – on Thursday stood by his assertion that Alabama probate judges should not issue marriage licenses to gay couples, a seemingly direct challenge to a U.S. Supreme Court ruling that effectively legalized same-sex marriages nationwide.
Moore’s stance first appeared on Wednesday in an administrative order; he reiterated his position Thursday in an interview with The Associated Press.
“Until further clarification, (the probate judges) are bound by state law,” Moore said.
His order on Wednesday and his remarks on Thursday drew immediate condemnation from civil and gay rights organizations and from a legal advocacy group, which filed a complaint against him with a state commission that investigates judicial misconduct. His critics promptly suggested that he should be removed from the bench again for his refusal to accept the U.S. Supreme Court’s decision six months after it was handed down.
Some of the judges who stopped issuing licenses Wednesday immediately after Moore’s order, meanwhile, resumed the service Thursday after consulting with attorneys.
In his order, Moore noted that the Alabama Supreme Court has not lifted a March 3 ruling prohibiting probate judges from issuing licenses to gay couples. He said it’s up to the state court to decide what to do with that order following the U.S. Supreme Court’s decision.
Moore insisted Thursday that he is not defying the high court, but seeking to resolve what he says are lingering questions about the impact of the federal decision. He said he issued the order Wednesday because “there’s a lot of confusion out there among probate judges about what to do.”
“Some are issuing same-sex marriage licenses, some are not, some are issuing no marriage licenses at all.”
Two federal prosecutors in Alabama, however, said on Wednesday that there should be no confusion, because the U.S. Supreme Court ruling trumps whatever the state court has to say on gay marriage. Other Legal experts interviewed by the AP agreed.
Richard Cohen, president of the Montgomery-based legal advocacy group the Southern Poverty Law Center, said Moore should be removed from office – again.
“You know back in 2003 he was kicked out of office for violating a federal court order,” Cohen said. “This time he’s urging 68 probate judges to violate the federal court order that was entered by the district court in Mobile. He’s also asking them to ignore the ruling of the United States Supreme Court.”
The center – which sued Moore over the Ten Commandment monument – filed an ethics complaint to the state’s judicial inquiry commission last year after Moore publicly criticized a federal judge’s ruling overturning Alabama’s same-sex marriage ban. The advocacy group filed a supplement to that complaint on Wednesday, saying Moore has violated the canons of judicial ethics by refusing to respect the U.S. Supreme Court’s decision. The court has not acted on the earlier complaint filed by the SPLC.
Alabama Judicial Inquiry Commission Executive Director Jenny Garrett said she couldn’t comment specifically on Moore, but that any potential sanctions for a judge accused of misconduct would be imposed if the commission filed charges in the court of the judiciary and the court found the judge to have committed ethics violations.
All proceedings before the commission are confidential and don’t become public until they move to the court of the judiciary, Garrett said. Sanctions the court could impose on a judge include removal from office, suspension without pay, censure and more, Garrett said.
Wayne Flynt, a former Auburn University history professor, said Moore’s tactics echo Southern states’ resistance to federal school desegregation orders long after the segregation had been ruled illegal.
“We arbitrated these issues between 1861 and 1865,” Flynt said of the Civil War conflict that determined who has the final say, states or the federal government.
Regardless of his stance, Moore’s order did not appear to have widespread impact.
Probate judges in Lawrence and Madison counties who had stopped issuing all marriage licenses in response to Moore’s order Wednesday said they had resumed the service Thursday after consulting with attorneys. Mobile County said licensing operations would resume on Friday.
Republished with permission of the Associated Press.