Judge Roy Moore is showing us how it’s done. The way for a state to break the back of the leviathan of an out-of-control judiciary is simple: take your stand on the Constitution of the United States and refuse to budge.
Judge Moore has quite correctly observed that the federal Constitution, in Article I, Section 8, gives precisely zero authority to the central government to dictate marriage policy to the states. Thus, according to the 9th, 10 and 11th amendments, defining marriage is a matter reserved solely for the states. To paraphrase Martin Luther, Judge Moore is in effect saying, “Here I stand. I can do no other. So help me God.”
Federal District Judge Callie V. S. Granade last month imposed her own view of sexual morality on the citizens of Alabama by declaring its ban on sodomy-based marriage to be unconstitutional. (And here all this time we’ve been told that imposing your moral values on others is wrong! I guess it all depends upon whose values we’re talking about.)
In so doing, Judge Granade disenfranchised every last one of the 697,591 voters who supported the natural marriage amendment at the ballot box in 2006. Maybe Eric Holder is right: there are still serious issues with voting rights in the South.
All 68 probate judges in Alabama were ordered by Justice Moore to refuse to issue same-sex marriage licenses because issuing such licenses would be contrary to state law and the state constitution and would require them to violate their sacred oath of office.
Some activist probate judges defied Moore’s judicial order, which gives the lie to the liberal bloviation that folks are compelled to do whatever the judicial authority above them tells them to do. Judicial activists are celebrating these renegade probate judges who have substituted their own judgment for that of a superior court, which makes them hypocrites of the worst sort if they criticize Judge Moore for doing the very same thing.
Criticisms are mounted in virtually every low-information media story on the legal crisis in Alabama by drawing comparisons between Alabama of 2015 and the Alabama of the 1960s, when Democrats fought tooth and nail to preserve racial segregation.
As Colin Powell might say, such a comparison is “convenient but invalid.” It’s invalid for one simple reason: Alabama was wrong on race, but right on marriage.
Judge Moore is not defying the law, he is upholding it. Judge Granade is the one standing in the courthouse doorway in defiance of both the law and the Constitution.
One intriguing but under-noticed development from yesterday is that Judge Granade has already blinked in the face of the assertion of state sovereignty. One lesbian couple beseeched her to find a probate judge in contempt because he would not issue them a marriage license.
Judge Granade, perhaps recognizing a judicial IED when she saw one, refused to issue the citation. Perhaps she decided that the picture of federal marshals frog-marching an honorable, law-abiding judge with an impeccable reputation out of his own courtroom and into a prison cell was a contempt citation too far.
What Judge Moore and these probate judges are doing is in the finest tradition of Martin Luther King, Jr. They are waging the civil rights battle of this decade through a non-violent stand against an unjust and dictatorial oligarchy.
From the Birmingham jail, Rev. King wrote, echoing St. Augustine, “An unjust law is no law at all.” Judge Moore’s paraphrase: “An unjust ruling is no ruling at all.” Here’s to Judge Moore and every probate judge in Alabama who is standing with him against judicial tyranny. Rev. King would be proud.