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Alabama Lawyers Face Off Against Chief Justice In Gay Marriage Fight

02/04/2015 11:58 am ET | Updated Feb 02, 2016
ASSOCIATED PRESS

In Alabama, which is set to begin allowing same-sex marriages on Monday, two old foes are facing off over the future of gay rights in the state.

A legal group is leading the fight against Alabama Supreme Court Chief Justice Roy Moore over his opposition to gay marriage. Last week, Moore wrote in a letter to Gov. Robert Bentley that he planned to oppose a federal judge’s recent ruling that the state’s ban on same-sex marriage is unconstitutional. He referred to the decision as “judicial tyranny” and said that any Alabama judges who obey the federal court ruling and allow marriage licenses to be issued would be in “defiance of the laws and Constitution of Alabama.”

This week, Moore doubled down on his position, with a letter and memorandum to Alabama’s probate judges, telling them that they are not required to issue marriage licenses to same-sex couples once the ruling goes into effect next week. Lower federal courts, he wrote, “have absolutely no legitimate authority to compel state courts to redefine marriage to include persons of the same sex."

In response to Moore’s statements, last week the Southern Poverty Law Center, a legal advocacy group based in Montgomery, Alabama, filed a judicial ethics complaint against him, charging the chief justice with numerous ethical violations and accusing him of undermining “public confidence in the integrity of the judiciary.” On Tuesday, the SPLC filed a supplement to its ethics complaint, pointing to a radio interview in which Moore stated that, if the U.S. Supreme Court were to determine that the ban on same-sex marriage is unconstitutional, he would face a “very hard decision” whether to follow the law of the land.

This is not an entirely new dilemma for Moore, nor is it the first time he has faced challenges over an inclination not to comply with a higher court. In 2001, the year Moore was first sworn in as chief justice, he arranged for workers to install a two-and-a-half-ton granite monument of the Ten Commandments in the central rotunda of the Alabama state courthouse. The SPLC, whose offices are next door to the Supreme Court, was among several groups to file a suit calling for the monument's removal, citing the separation of church and state. A federal court order demanded the monument be removed, but Moore refused to comply, and in 2003, he was dismissed from the bench. (He was re-elected to the post in 2012.)

“He hasn’t learned his lesson,” Richard Cohen, president of the SPLC, said of Moore. “He wasn’t elected to be the chief pastor of Alabama, he was elected to be the chief justice, and he doesn’t understand the difference.”

Moore did not respond to a request for comment.

Cohen did notice one key difference this time around, however. During the fight over the Ten Commandments monument, the SPLC was flooded with threats and angry letters. But in the past week, Cohen says, his group has received thank-you notes from around two dozen lawyers. “The sentiment on the bar is overwhelmingly against Moore,” he said.

Indeed, it does not appear that Alabama's legal community is rallying behind Moore's position, although support for same-sex marriage in the state still trails the rest of the country. The Alabama State Committee of the American College of Trial Lawyers released a statement calling Moore’s letter to the governor “improper and unfair.” The Alabama Probate Judges Association has also turned its back on Moore. Initially, the group advised its members not to issue marriage licenses to same-sex couples, arguing for a narrow interpretation of the court ruling that struck down the ban. But last week, after clarification from the judge who issued the ruling, the association changed its position, stating that it will encourage its members to comply with the decision and that, once the stay on the ruling is lifted Monday, same-sex couples may apply for marriage licenses.

"I think it's quite telling that the Alabama Probate Judges Association has reversed its position,” Ron Krotoszynski Jr., a professor at the University of Alabama School of Law, told The Huffington Post. “Like Chief Justice Moore, these judges are subject to popular election; yet, unlike the incumbent Chief Justice, they clearly recognize that they have a legal duty to honor a binding order of a federal court that invalidates a state constitutional provision because it violates the federal Constitution.”

Krotoszynski said the matter has come up several times in the constitutional law course he teaches to first-year students, both in and out of class. “They seem embarrassed,” he said of his students, noting that "they understand the supremacy clause of the Constitution,” which states that federal laws take precedence over state laws.

“Whether or not the students personally agree or disagree with same-sex marriage, they clearly appreciate that a state court judge cannot resist or refuse to honor a higher ruling," he added.

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