Roy Moore, Chief Justice of the Alabama Supreme Court, best known for his flouting of the Establishment Clause for refusing, in 2003, to remove a 2.6 ton Ten Commandments monument from the Supreme Court building, is now questioning the jurisdiction of federal courts to decide the constitutionality of same-sex marriage bans.
After Moore was removed from the bench in that same year, he ran for governor several times and flirted with running for president. He won reelection to the Alabama high court in 2012.
Writing to Alabama Governor Robert Bentley today, Moore complains that last week’s federal court ruling striking down Alabama’s ban on same-sex marriage “has raised serious, legitimate concerns about the propriety of federal court jurisdiction over the Alabama Sanctity of Marriage Amendment.” In the letter, Moore warns that local clerks who issue marriage licenses to same-sex couples will be “in defiance of the laws and Constitution of Alabama.”
Moore is attempting to argue for jurisdiction-stripping, a maneuver to deprive a federal court (despite what is required in the Constitution itself) of the ability to decide questions of federal Constitutional law. Moore, of course, cannot do this unilaterally; like his Ten Commandments stunt, he would be in defiance of the federal Constitution with his antics. All his efforts, and all his appeals to religion, can’t change the simple fact that under the Constitution, federal courts, not state courts, decide matters of federal constitutional law.
But Moore believes the Bible trumps the Constitution (or at least his version of the Bible). As Julie Ingersoll has observed, “Moore’s underlying philosophy of law is that only God and the Bible can be the source of moral authority.”
This wouldn’t be the first time that Moore has attempted (utterly unsuccessfully, I might add) to shut down a federal court’s constitutionally-granted jurisdiction and authority over constitutional matters, as I noted in 2011:
After Moore was stripped of his judgeship for defying a federal court order to remove his monument, [his lawyer, Herb] Titus drafted the Constitution Restoration Act, which would have deprived federal courts of jurisdiction in cases challenging a government entity’s or official’s “acknowledgment of God as the sovereign source of law, liberty, or government.” The bill, which did not pass, nonetheless had nine Senate co-sponsors and 50 House co-sponsors; including House Majority Leader Eric Cantor, Bobby Jindal, now the governor of Louisiana, Nathan Deal, now the governor of Georgia, and Mike Pence, a conservative hero who’s now running for governor of Indiana.
Moore argues in his letter to Bentley today that “The laws of this state have always recognized the Biblical admonition stated by our Lord,” citing Mark 10:6-9 (“But from the beginning of creation God made them male and female. . . What therefore God hath joined together let not man put asunder.”)
When others, like Mike Huckabee, speak loosely of the Supreme Court lacking the authority to decide whether same-sex marriage bans violate the Constitution, it stems from the ideology of Moore and his ilk: that despite what the Constitution says, the Bible comes first. Something tells me, though, Moore’s new stunt won’t fare much better than his last.
