An AL.com columnist incorrectly described the legal challenges to prohibitions on same-sex marriage and declared he is “thankful” for Alabama Supreme Court Chief Justice Roy Moore, who recently announced he was opposed to recent federal marriage equality rulings. Moore has urged the state's Governor to stand against “judicial tyranny” and warned he might not accept the U.S. Supreme Court's final decision on this matter.
On January 23, a federal judge in Mobile struck down Alabama's voter-approved prohibition on same-sex marriage, ruling that the ban violated the 14th Amendment of the U.S. Constitution. On January 27, Moore wrote a letter to Alabama Governor Roy Bentley, asking Bentley to join him in ignoring the federal civil rights decision. Moore also expressed his “dismay” that probate judges in Alabama planned to “recognize and unilaterally enforce a federal court decision which does not bind them” and stated that he “would advise them that the issuance of such licenses [to same-sex couples] would be in defiance of the laws and Constitution of Alabama.”
On January 28, he appeared on the Family Research Council's radio show to defend the Supreme Court's now-overturned decision in Bowers v. Hardwick that affirmed state bans on gay sex. Moore told host Tony Perkins that “the danger of [marriage equality decisions] is, if we let judges overturn the will of the people and do nothing about it and do not push that, then the United States Supreme Court turns around and says, 'Well, now, 30 states have adopted this, and that's a majority of the people that want it.'” He followed up this defense of anti-LGBT discrimination on January 29 in a radio interview on The Matt Murphy Show, where he reportedly claimed "that's a very hard decision" as to whether or not he would follow the decision of the Supreme Court if it upheld the marriage equality decisions he condemns.
“Good for him,” AL.com's J. Pepper Bryars wrote in support of Moore's recent stand against the federal judiciary's endorsement of marriage equality in his February 3 column. He also applauded Moore's decision to take “an all-too-rare stand against judicial activism in America,” and admonished “lawmakers [who] loudly complain about federal judges, but then meekly abide by their rulings without any serious action, it's refreshing to see someone finally push-back in a real way”:
Whatever side of the aisle you're on, it should be troubling that our democratic society so easily -- and perhaps too eagerly -- bends the knee to the bench on practically every issue. Is there anything that isn't under their purview? Is there anything that “we the people” can decide for ourselves? It appears that when the courts decide those questions for themselves, without any serious check and balance, the answer is clearly “no.”
It's not that federal courts don't have the power of judicial review -- the ability to ensure that laws aren't clearly forbidden by the federal constitution -- it's a matter of scope. As noted in Moore's letter, “nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage.”
He's right. There's nothing in the constitution that remotely touches upon marriage, or abortion for that matter, except the part that says whatever isn't written in there must be left to the states to figure out, or to the people. Yet we allow more than a million unborn babies to be killed annually in the United States because nine judges said it was okay back in the 1970s. We're still submitting to that unjust ruling.
While it may be true that the U.S. Constitution doesn't explicitly define marriage -- although it has been long-recognized as a fundamental right -- there is something in there about "equal protection under the law." This clause of the 14th Amendment (that is clearly “in the United States Constitution”) is what the federal judge in Alabama and others across the country relied on to affirm a constitutional protection for marriage equality. Later this year, the Supreme Court will hear oral arguments in four same-sex marriage cases and will ultimately determine whether state bans on same-sex marriage violate the 14th Amendment of the U.S. Constitution. Making a final ruling on legal issues that arise under the federal constitution is well within the “scope” of federal courts and the Supreme Court, and has been for over 200 years -- since the Chief Justice Marshall declared “it is emphatically the province and duty of the judicial department to say what the law is.”
As for the ability of federal courts to block improper state action and laws, that too was settled by the Supreme Court the last time the southern states refused to heed a federal civil rights decision. In 1958, the Court unanimously held that it was unconstitutional for Arkansas state officials to resist school desegregation orders (emphasis added):
In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted “ingeniously or ingenuously”...It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State[.]” No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.
Bryars ultimately ignores the fact that while state courts need not necessarily follow lower federal courts until the Supreme Court has weighed in, state officials are allowed no such leeway and are legally required to comply with rulings like this most recent gay marriage decision. As SCOTUSblog's Lyle Denniston explained, “while decisions by the federal judge in Mobile nullifying Alabama's ban on same-sex marriage do not actually bind any state court pondering the same question, such a federal court ruling, if directed to state officials, must be obeyed by them. If a state official has been properly sued in federal court, and is found to have violated the national Constitution, a federal judge has ample authority to order such an official to stop the violation. That is exactly what the Mobile federal judge did this week.”