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:
...it 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.