Much of the legal uncertainty in Alabama over same-sex marriage centers on Roy Moore, chief justice of the state’s Supreme Court. On Sunday night, Moore told Alabama’s probate judges not to issue marriage licenses, defying a federal judge. This is not the first time Moore has refused to follow a federal judge’s ruling.
Here is a guide to Moore, his history and what it means for Alabama right now.
Moore is an Army veteran and a grandfather. He was a military police company commander in Vietnam before returning home and getting his law degree at the University of Alabama in 1977. Moore has also drawn attention for his controversial actions in the past, which is why this is actually his second stint as the state’s chief justice. Moore was first elected to that position in 2000, but was removed by a panel after refusing to move a Ten Commandments monument he had installed in a state building. He was reelected in 2012.
Until this week, Moore’s claim to fame was being the “Ten Commandments judge.” The controversy that led to Moore being ousted from the bench involved a large monument to the Ten Commandments that had been installed in the Alabama Judicial Building in Montgomery.
This two-and-a-half-ton monument, and Moore’s fight to keep it in place, served as a cultural flash point. Civil liberties groups argued that it violated the church-state separation, while conservative and religious supporters of Moore defended his actions.
The Southern Poverty Law Center, the American Civil Liberties Union and Americans United for the Separation of Church and State filed a lawsuit arguing that the monument violated the constitutional prohibition against religious endorsement. The U.S. Court of Appeals for the 11th Circuit agreed, ordering Moore to remove the monument.
In its July 2003 ruling, the appeals court also specifically links Moore’s actions to the “position taken by those southern governors who attempted to defy federal court orders during an earlier era,” citing the actions of former governors Ross Barnett of Mississippi and George C. Wallace of Alabama in trying to block campus integration and protest marches during the height of the civil rights movement.
“Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case,” the appeals court wrote.
Moore did not comply with the order, leading to his suspension and, eventually, removal from the bench.
Moore was booted from the Alabama Supreme Court in November 2003. A state ethics panel unanimously decided to remove him from the bench owing to his refusal to follow judicial rulings.
“This court has found that Chief Justice Moore not only willfully and publicly defied the orders of a United States district court, but upon direct questioning by the court he also gave the court no assurances that he would follow that order or any similar order in the future,” the ethics panel wrote. “In fact, he affirmed his earlier statements in which he said he would do the same.”
It also determined that there was no point in any punishment other than stripping him of his office and concluded: “Anything short of removal would only serve to set up another confrontation that would ultimately bring us back to where we are today.”
Nearly a decade later, he reclaimed the seat. Moore defeated Bob Vance, a Democrat and a circuit judge in Jefferson County, in November 2012. “I have no doubt this is a vindication,” Moore said in his election night speech, according to the Wall Street Journal.
Moore is back in the spotlight this week for once again defying a federal judge.
In this situation, he told the state’s probate judges to ignore a federal judge’s ruling that same-sex marriages could proceed and told them not to issue marriage licenses. His letter came before the U.S. Supreme Court agreed that same-sex marriages can occur in the state.
Moore noted that the probate judges who issue marriage licenses in the state do not report to Luther Strange, the Alabama attorney general, but rather he said they fall under his supervision. (In response, Strange told probate judges he cannot provide them with any guidance, suggesting they speak to “their attorneys and associations” instead.) Some probate judges agreed not to provide the marriage licenses, as ordered by Moore, while others listened to the federal judge, leading to a muddled, patchwork setup in Alabama on Monday.
Civil liberties groups were not thrilled with his decision. The American Civil Liberties Union of Alabama asked people denied marriage licenses to contact them.
“No official in Alabama has the right to ignore a federal court decision legalizing same-sex marriage,” the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said in a statement. “Some zealots apparently believe they have the right to ignore laws they don’t like. They may soon find that they are very much mistaken.”
Americans United responded to Moore on Monday by offering legal representation to same-sex couples denied marriage licenses.
“It means a fair amount of confusion,” Ed Whelan, president of the Ethics and Public Policy Center and an influential conservative legal writer, said in a telephone interview Monday.
Probate judges in the state are reacting accordingly. Some counties are issuing licenses, while others are blocking the release.
The Southern Poverty Law Center said that as of Monday afternoon, eight counties (accounting for about 40 percent of Alabama’s population) had issued licenses:
Update: Coffee, Chilton, Lowndes join list of at least 8 counties issuing licenses, bringing total nearer to 40% of state pop. #ALMarriage
— SPLC (@splcenter) February 9, 2015
Moore “may sincerely believe state law takes precedence over federal law,” Ronald Krotoszynski, a professor at the University of Alabama School of Law, said Monday. “And if that’s so, it’s unfortunate because it’s plainly wrong.”
“If the state loses a claim when it’s represented by the attorney general, that has to be that, otherwise the system becomes utterly chaotic and inefficient,” Krotoszynski said. “And we sort of see that today, with respect to the patchwork rulings by the various local probate judges.”
Top officials in Alabama are also responding to the confusion by effectively shrugging. Alabama Gov. Robert Bentley (R) said that his office would “not take any action against” any probate judges. Luther Strange, the Alabama attorney general, said his office could provide no guidance to the probate judges and told them “to talk to their attorneys and associations.”
Krotoszynski said that he didn’t see a way this would end without all of Alabama’s probate judges agreeing to issue licenses. The judges, who are elected, could continue to fight, but a person denied a marriage license would go to the federal district court and that court would likely enforce the federal judge’s earlier judge’s order to issue licenses.
“There’s no real question about how this is going to come to rest,” he said.
[This post has been updated at 5:22 p.m.]