Why Chief Justice Roy Moore and the Alabama Supreme Court Just Made the Case for Same-Sex Marriage

Abstract

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of heart later in life and distanced himself from his “segregation now, segregation tomorrow, and segregation forever” speech. Moore has not learned his lesson. But he will soon, when the U.S. Supreme Court rules that same-sex marriage bans violate the Equal Protection Clause. If, as Moore has suggested, he would not follow a ruling by the Supreme Court in favor of same-sex marriage, the Alabama Court of the Judiciary should dismiss him from the bench immediately.Moore’s behavior, not to mention the ruling by the Alabama Supreme Court in Ex Parte State of Alabama ex. rel. Alabama Policy Institute is akin to a bad movie sequel that should have never been made and rightfully bombs at the box office. Technically, the Alabama Supreme Court did not err in disregarding the federal court’s order. The fact that it did so is troubling. Even more troubling are the legal gymnastics that the Court engaged in to achieve what even a casual observer knew would be a decision reaffirming traditional marriage. Ironically, the Court’s decision – and the legal jujitsu it employed – makes the best possible case for same-sex marriage. Among other things, the decision threatens to disrupt the country’s delicate system of cooperative federalism, undermine the rule of law, and tar the judiciary with the taint of arbitrariness.Make no mistake: this case is not about states’ rights. It is about the integrity of the judicial system, which rises and falls on the public’s perception that judges are impartial and objective decision-makers, not self-interested actors who view the law as a vehicle to impose their policy predilections on citizens. This article summarizes the Alabama Supreme Court’s 148-page decision and explains why it was motivated by politics and ideology, not law and justice. The decision represents animus toward same-sex couples and a continuation of Alabama’s long history of drawing arbitrary classifications that enshrine discrimination into the law. For these and other reasons, the Alabama Supreme Court's decision makes the best case in favor of a decision by the U.S. Supreme Court that same-sex marriage bans violate the Equal Protection Clause.