Yesterday, an Alabama judicial ethics panel sent the judicial ethics case against controversial Alabama Chief Justice Roy Moore to trial. The trial will occur in September. For those not familiar with the case, Moore issued a memo on January 6 to state probate judges. The memo told probate judges, who are responsible for issuing marriage licenses in Alabama, that an order issued by the Alabama Supreme Court in March, 2015 remained in full force and effect. That order required Alabama probate judges to refuse to issue marriage licenses to same-sex couples.

Moore issued his January 6 memo even though the United States Supreme Court had already held in Obergefell v. Hodges that same-sex marriage is a right protected under the United States Constitution, and a federal court in Alabama ordered the state to follow that decision. Moreover, no other Alabama Supreme Court Justice was willing to support Moore’s efforts to undermine the United States Supreme Court’s decision. As with all things Roy Moore there were passionate protests outside the courthouse by people on both sides.

This isn’t Moore’s first brush with a judicial ethics panel. Moore was dismissed from the bench in 2003 for refusing to remove a large stone Ten Commandments monument from the state courthouse even after he was ordered to do so by a federal court. He somehow managed to make it back onto the state Supreme Court and now finds himself in yet another ethics probe.

So what possible defense could Moore have for this latest controversy? His attorney, Matthew Staver, argued that Moore was simply clarifying for state probate judges that the state supreme court order was still in full force and effect. Staver argued that the memo stated Moore was not providing “guidance to Alabama probate judges on the effect of (Obergefell v. Hodges) on the existing orders of the Alabama Supreme Court.”

This entire situation is a bit ridiculous. I had thought we were far beyond the days of a state supreme court justice implying that state laws (or court orders) which violate the federal constitution are still valid. That was the sort of argument made to maintain segregation after Brown v. Board of Education and later after Swann v. Charlotte-Mecklenburg Board of Education. First year law students learn about the Supremacy Clause in the United States Constitution in basic constitutional law classes. The Supremacy Clause requires that federal law trumps state law in areas where the federal government has power. Academic debates aside (which is hard for me to write as an academic :-), it is legally axiomatic that the United States Supreme Court has the authority to determine what rights are protected under the United States Constitution. As John Carroll, the former federal magistrate judge representing the Judicial ethics panel explained, Moore’s argument is pure semantics and the purpose of the January 6 memo was to undermine the right to same-sex marriage in Alabama.

There is no way to know how the state Judicial ethics court will decide the case, but my guess is that Moore will be dismissed from the bench for the second time in less than 15 years. The damage situations like this do to the cause of religious freedom nationally is palpable. The case has garnered national attention and it plays right into the hands of those who argue religious freedom=discrimination, an argument that I have repeatedly stated is unfair and distorted. Yet, when you have a state supreme court justice urging violations of federal law because of his religious beliefs (which is obvious in Moore’s case), it is easy to understand how those who oppose religious freedom may feel vindicated. Of course, Roy Moore’s actions do not represent the views of most religious people (even most of those who agree with him on the religious issues), and his actions certainly do not represent the manner in which other judges—including devoutly religious judges—will behave.

A copy of the complaint filed against Moore by the Alabama Judicial Inquiry Commission can be found here: Judicial Inquiry Commission Complaint Against Roy Moore


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