Montgomery, AL (TFC) – In a Per Curiam decision, officially hiding the author, Chief Judge Roy Moore and Seven other Justices of the Alabama State Supreme Court halted same sex marriages in that State and ruled that persons do not have a fundamental right to same sex marriage protected by the United States Constitution.
In a 134 page decision the court spends much time on the history of marriage. Traditional marriage. At one point even to go so far as to offer a colloquy from Archbishop Rutherford as quoted in a case from 1870:
“Mr. Parsons, referring to the same subject, in a late work of the highest authority, uses like language. He declares that ‘the relation of marriage is founded on the will of God, and the nature of man; and it is the foundation of all moral improvement, and all true happiness. No legal topic surpasses this in importance; and some of the questions which it suggests are of great difficulty.'”
Many factors are troubling in this case, including the public comments by Chief Judge Roy Moore after the US District Court ruling allowing same sex marriage in Alabama and that same court’s subsequent enforcement order, and the extraordinary procedural way the Alabama High Court was able to make this ruling.
On January 23 of this year U.S. District Judge Ginny Granade ruled that the Alabama Marriage Protection Act and the amendment that later enshrined it in the state constitution both were unconstitutional. Subsequent to that the Judge refused to issue a stay pending appeal. Something the US Court of Appeals and the US Supreme Court agreed with.
On February 8 Judge Moore told the state’s probate judges not to issue marriage licenses to same-sex couples Monday. Judge Moore openly stated that the US District Court decision was not binding on State Courts. Essentially telling any potential petitioner what his decision would be if presented with the legal question. This is unheard of behavior for a judge, let alone a Chief Judge of a State Supreme Court.
Yet here we are, less than one month later, after an application for what is called in procedural rules, an Extraordinary and Emergency Writ of Mandamus. Writs of mandamus and prohibition are directed to a judge or judges, and other extraordinary writs are governed by Rule 21 of the Rules of Appellate Procedure. Under subsection (d) of this rule it states:
“The term “extraordinary writ” within the meaning of this rule encompasses the situation where a party seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable. This rule does not apply to those cases where review in a court of appeals is normally had by way of an extraordinary writ.”
These are state court rules and have no authority over any action of the US District Court. How the Alabama State Court used this writ to intercede in this case is a marvel. As part of the aforementioned 134 page decision the court reasoned that since the Probate Courts of Alabama are “courts of inferior jurisdiction” it had the authority to issue a “writ” necessary to cure an issue in those courts. The problem with this position is that what the court is taking control of is in fact a US District Court order.
Judge Moore and his brethren reasoned, because of the “confusion” presently being experienced by the probate courts in Alabama as well as all of the “new” factors, that the State of Alabama was going to be faced with, due to the Federal Court’s decision, it somehow had the power to fix the “confusion” created by the court. The court decided that “changes” involving, benefits, wills, parenting rights and other marriage incidentals would be impacted in a way that the State could not handle.
“The ‘magnitude and importance’ of the issue before us is unparalleled. And the ‘special reasons’ that compel us to act are unlike any other in the history of our jurisprudence. Given the textual grant of authority described above, the sui generis nature of this matter, the unprecedented existing and potential confusion and disarray among the probate and other judges of this State, the multiplicity and magnitude of the substantive issues presented, the resulting need for an immediate resolution of this matter, the unavailability in any other court of the immediate statewide relief that is needed, and this Court’s ultimate responsibility for the orderly administration of justice in this State, we are clear to the conclusion that this Court has the authority to act in this matter to maintain and restore order in the administration of our laws by the probate judges and the courts of this State.”
The Alabama Supreme Court is saying that Same Sex Marriages in the state of Alabama will cause such confusion in the court system and government that the Court has to save the day. It did so using a Writ of Mandamus to cure this major confusion. An extraordinary solution that many in the legal profession know is an extraordinary court order because it is made without the benefit of full judicial process. Considering how vocal Judge Moore was publicly about his “legal” position in this case one can only wonder if he had anything to do with the Petitioner’s in this case bringing this request before the court in the first place.
Rarely has it ever been reported that an acting Judge, particularly a member of any State’s High Court, discussed an issue so openly publicly while still a possibility the matter could come before that same court in the near future as this one did. Further, a Writ of Mandamus is essentially an uncommon sought relief in any court. The appearance of Judicial activism is prominent here and one can only wonder how this rare solution actually came to be. Considering how far the court had to reach to even include the participants in the case since proper procedure was not followed initially. Judge Moore has an extensive history of behavior not normal for a judge. In 2003, during Moore’s first term as Chief Justice of the Alabama Supreme Court, he refused to remove a monument of the Ten Commandments (which he had commissioned) from the Alabama Judicial Building despite orders to do so from a federal judge. On November 13, 2003, the Alabama Court of the Judiciary unanimously removed Moore from his post as Chief Justice. Yet Judge Moore is once again Chief Judge.
Alabama continues to be one of the most rigid places in this country when it comes to their unwillingness to treat all people equally. Remember Selma is in Alabama.