Roy Moore & Defiance

Slate is hopping mad about Alabama Chief Justice Roy Moore's new order directing probate court judges not to issue gay marriage licenses.
In a stunning display of defiance against the judiciary, the U.S. Constitution, and the fundamental rule of law, on Sunday night Alabama Chief Justice Roy Moore forbade probate judges from issuing marriage licenses to gay couples. Moore’s interdiction explicitly flouts a federal court order requiring the state to begin recognizing same-sex marriages on Monday, a decision the Supreme Court declined to put on hold.
I don't think it's fair to characterize this as defying a Federal order. What he said was that the Federal order explicitly limits itself to only the Attorney General and his agents, a class that doesn't include probate court judges (who not only don't work for the Atty General, but are of an independent branch of the government). A Federal judge could issue a new order, but for now he's technically correct: Alabama's attorney general and his agents have to stop enforcing the law, but probate court judges are still bound by it.

Of course, if the attorney general can't prosecute you for breaking the law, what would stop a probate court judge who wanted to do so from issuing such licenses? Moore offers the opinion that the governor would have the responsibility, somehow: would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests "the supreme executive power of this state," ... to ensure the execution of the law."The Governor shall take care that the laws be faithfully executed." ... 'If the governor's "supreme executive power" means anything, it means that when the governor makes a determination that the laws are not being faithfully executed, he can act using the legal means that are at his disposal.
OK, but what means are those? Can the governor personally prosecute you?

In addition, the very point Moore is standing on here -- the separation of the judicial and executive branches -- means that Roy Moore has no authority to order the governor to do anything. If the governor elects not to do whatever it is he decides he could do, there's nothing Roy Moore can do about it. If the governor is on his side this order provides cover for some sort of action. It's very unclear what action that would be. Alabama's judges are elected, so perhaps the governor could campaign against them next time 'round. But he could do that anyway, if he wanted to do it.


E Hines said...

The order in question is from a Federal District judge. The state Supreme Court CJ has issued his order. This strikes me as putting the whole thing into a grey area within which the 10th Amendment fits nicely.

Of course, the Federal Supreme Court may settle things one way or the other, but until then....

Eric Hines

Grim said...

Well, except that the Alabama order and the Federal order aren't even inconsistent. The Federal order tells the Attorney General and his employees not to enforce the law. The Alabama order reminds probate court judges that they don't work for the Attorney General.

I think that the language in the Alabama constitutional amendment under debate will not survive intact, because it's going to run into a Full Faith & Credit conflict with the Federal Constitution. It's an interesting question whether it will die in its entirety, though.