A clash of state and federal judicial systems on same-sex marriage

A US District Judge Callie Granade ruled on January 23rd that Alabama’s ban on same-sex marriages violated the US constitution and ordered that marriage licenses be issued beginning today. That verdict was appealed by Alabama and last week a federal appeals court declined to issue a stay of the lower court judge’s ruling. In response Roy Moore, the chief justice of Alabama’s state supreme court and a vehement opponent of same-sex marriage, issued his own order late last night that said that until the US Supreme Court ruled on the issue, probate court judges were not obliged to issue licenses and he was ordering them not to do so.

“Effective immediately, no probate judge of the state of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent with” state laws banning same-sex marriage, Moore wrote in his administrative order.

If judges ignore his order, Moore wrote, it would be up to Alabama’s Republican Gov. Robert Bentley, a same-sex marriage opponent, “to ensure the execution of the law.”

Alabama appealed to the US Supreme Court to stay the district judge’s order until they had ruled on the issue but in a summary 7-2 ruling issued early this morning (with justices Thomas and Scalia dissenting), they rejected Alabama’s appeal, so same-sex marriages can go ahead today. (You can read Thomas’s dissent here.)

Moore’s action is a direct challenge to the idea that the federal constitution trumps state laws and constitutions and whatever the judges on the US Supreme Court may feel about same-sex marriage, they were not likely to look kindly on state judges arguing that they could violate rulings by federal judges.

Roy Moore is no stranger to controversy. As a county judge, he became famous for refusing to remove a plaque with the Ten Commandments from his courtroom wall back in the 1990s and rode that fame to win a seat on the state Supreme Court and then installed a three-ton monument to the Ten Commandments in the rotunda of the courthouse. When a federal judge ordered it removed, he refused but the other judges on the court sided with the federal judge and removed Moore from office. But in 2012, Moore won an election to be the chief justice of the Supreme Court. He is not one to go quietly into the night so it will be interesting to see how far he will go in his defiance of what he calls the ‘tyranny’ of federal courts striking down same-sex marriages.

So what is happening today in Alabama? Confusion reigns. Some judges are issuing marriage licenses while others are not. The state’s attorney general who took Alabama’s appeal of a stay to the US Supreme Court and lost seems to be washing his hands of the whole matter, saying that he has no power over probate judges and advising them to consult their own lawyers!


  1. brucegee1962 says

    So it sounds as if all the county clerks and justices in Alabama have to choose between marrying gay couples and risk being arrested, or not marrying them and risk being sued, or resigning. What an ugly picture.

  2. Mano Singham says

    Gah! I hate making such stupid mistakes, the product of typing without thinking. Thanks for pointing it out. It has been corrected.

  3. gshelley says

    Yeah, they have put out dissents for each case since the sixth creates the split (As far as I know, they may have dissented previously but chosen not to declare it.)

  4. Holms says

    If this guy is openly defiant towards (or less likely, ignorant of) the extremely well established hierarchy of the courts, how can he be considered qualified for his job?

  5. Mano Singham says


    He lost his judgeship once before over the Ten Commandments. The catch is that in Alabama these posts are elected ones.

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