Last week, after a federal district judge had ordered Alabama to stop enforcing the same-sex marriage prohibition, a federal appeals court refused to intervene. So on Sunday, while the Supreme Court was mulling whether to jump in, Alabama’s Chief Justice, Roy S. Moore, told his state’s probate judges, who issue the licenses there, not to grant them to gays. After all, Moore’s instructions said, the order had come from a lowly federal judge. Until the Supreme Court forces us to change course, we state judges are just as good as any federal jurists are at reading the U.S. Constitution, he wrote.
The next day, Monday, the Supreme Court (with two dissents) let the lower court’s order stand, allowing same-sex unions. This was technically not a ruling on the merits of same-sex marriage rights — just a denial of a stay. The court will have to rule on the constitutionality of same-sex marriage in an unrelated case before it breaks in June. In that sense, Moore was right.
But his peremptory move is unlikely to sit well with justices. They are currently mulling a tricky case, and even if they side with Moore by holding that states should make their own choices (a verdict most court-watchers see as unlikely), they are creatures of decorum and order. They expect deference — even demand it. Which is why, by taking a stand, Moore may have done his cause more harm than good.
Dissing the feds is Moore’s calling card. More than a decade ago, he put a giant stone version of the Ten Commandments on display at the state courthouse. He would not take it down, even after a federal appeals court ruled the thing a violation of the Establishment Clause. The feds had to threaten a massive contempt-of-the-court fine before Moore’s eight fellow justices stepped in and ordered it off the premises. Now he’s using a technicality to delay what looks like the inevitable federal mandate of marriage equality.
In the years since George Wallace barred four little black kids from entering their grade school in 1963, in defiance of Brown v. Board of Education, the Supreme Court — and all the federal courts — have gotten used to having their orders obeyed. Even after the controversial abortion decision, Roe v. Wade, in 1973, the states did not continue enforcing draconic criminal abortion laws under some kind of cockamamie states rights theory. Defiance, instead, took the form of state laws that nibbled at, rather than confronted, the newfound abortion rights.
Moore’s strategy may be particularly galling to Justice Anthony Kennedy, author of the two great gay rights opinions so far. Moore is using one of Kennedy’s favorite legal avenues to stop social change: the very pro-state Eleventh Amendment, which forbids citizens from suing states in federal court. In Coleman v. Maryland in 2012, Kennedy was the crucial fifth vote to toss out a plaintiff’s suit against the state that employed him for violating the federal Family and Medical Leave Act, because, he said, under the Eleventh Amendment, citizens should not be going to federal court to sue the states they live in.
That may explain Moore’s approach. The plaintiffs in Alabama sued the Attorney General, rather than the state itself, because that’s how plaintiffs get around the Eleventh Amendment. So in his memo to probate judges, Moore said that plaintiffs had picked the wrong stand-in: the attorney general was too far from the agencies that enforced the marriage laws. The Eleventh Amendment requires exactly the right defendant, he said, and the right defendants would have been the license-granting probate judges.
It’s a clever move — using Kennedy’s Eleventh Amendment jurisprudence to stop his gay-rights jurisprudence. But as Moore should have learned in the Ten Commandments flap, it ultimately doesn’t pay to mess with the Supreme Court. Sooner or later the litigants in the Alabama case are going to name every possible defendant and get an order that sticks. All Moore has managed to achieve so far is to give the nation a glimpse into a hopeful future for the cause he so detests.