Nothing in the US Constitution grants the federal government “the authority to desecrate the institution of marriage,” says Alabama Supreme Court Chief Justice Roy Moore.
Moore made his comments this week in a letter to Alabama Gov. Robert Bentley, in which he declared that he will continue to recognize state law defining marriage as a union between a man and a woman, in spite of a recent federal district court decision declaring that law unconstitutional.
The state’s chief justice is no stranger to controversy: he is known for refusing to remove a Ten Commandments monument from the state courthouse.
US District Judge Callie Granade in Mobile Jan. 23 struck down Alabama’s ban on same-sex marriage, which is enshrined in the state constitution as a result of a 2006 referendum, which passed with 81%.
Granade ruled that the Sanctity of Marriage Amendment and a separate state law banning same-sex marriage violated the Equal Protection and the Due Process clauses in the 14th Amendment to the U.S. Constitution. She wrote that the State of Alabama must “convince the Court that its laws restricting the fundamental right to marry serve a compelling state interest." She rejected Alabama’s argument that it has a legitimate interest in protecting ties between children and biological parents.
Moore, in his letter to Bentley, complained that the destruction of the institution of marriage is being carried out by federal courts “using specious pretexts based on the Equal Protection, Due Process and Full Faith and Credit Clauses of the United States Constitution,” according to AL.com.
“Our State Constitution and our morality are under attack by a federal court decision that has no basis in the Constitution of the United States,” Moore wrote, citing the 10th Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Moore also said he was encouraged by the Alabama Probate Judges Association, which has advised probate judges to follow Alabama law in refusing to license marriages between two members of the same sex. To individual probate judges who have said they would recognize such unions, Moore said he would advise them that the issuance of licenses to same-sex couples “would be in defiance” of Alabama’s laws and Constitution. He also cited 2008 and 2009 rulings that U.S. district court decisions are not controlling authority in the Supreme Court of Alabama and that his court was not bound by decisions of the US Court of Appeals.
David Kennedy, an attorney for the plaintiffs in Granade’s ruling, said the Supremacy Clause in the U.S. Constitution provides that when a federal court with the proper jurisdiction rules that a state law is unconstitutional that state officials are bound to abide by the ruling.
The Alabama Attorney General’s Office said it would continue to oppose the challenge to state law, and Granade, responding to a request from that office, issued a 14-day stay in her ruling, as well as on a second ruling Monday in favor of another same-sex couple. The stay expires Feb. 9.
Gov. Bentley issued a statement today after Moore’s letter was released, expressing his disappointment in Granade’s ruling.
"The people of Alabama voted in a constitutional amendment to define marriage as being between man and woman. As governor, I must uphold the Constitution," he said. "I will continue to oppose this ruling. The Federal government must not infringe on the rights of states."
Ultimately, the dispute may be resolved by the Supreme Court of the United States, which will hear oral arguments in April in two cases regarding same-sex marriage.
John Burger is news editor for Aleteia’s English edition.