A federal judge’s ruling is not a “law.” It is a “ruling.” So, for example, when people refer to Roe v. Wade as “the law of the land,” they are simply mistaken.
A “law” is something enacted by the elected representatives of the people (or by the people directly through referendum) and signed by the chief executive. A judge’s “ruling” is not therefore a “law.” Judges have no authority whatsoever to make law. They can issue rulings, but the power to make law is flatly prohibited to them.
This is clear from the first words in the the first article of the Constitution. “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
That is “all,” as in “every last little single bit,” of the power to make law has been vested in Congress. That means no legislative power whatsoever has been granted to the judiciary. That is “no” legislative power as in zip, zilch, nada.
The New York Times makes a typical and constitutionally illiterate gaffe in today’s edition, on a piece on Alabama Chief Justice Roy Moore’s directive to probate judges in Alabama to refuse to issue wedding licenses based on what Alabama state law still refers to as “deviate sexual intercouse.”
In Alabama, United States District Court Judge Callie V. S. Granade issued a ruling - not a “law” you will note - overturning the state’s marriage amendment, which was passed with 81% of the vote in 2006. Thus this tyrannical judge in one fell swoop pulverized the voting rights of 697,591 Alabamians.
This judge, acting like a black-robed despot, has ordered Alabama to begin issuing same-sex licenses as of today (February 9). Judge Moore is rightly and constitutionally saying not so fast.
In fact, on Sunday night Moore issued an order to all 68 probate judges in the state as follows: “Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the Alabama Constitution or state law. In other words, judges, even probate ones, must obey the law and follow the Constitution just like everybody else.
Judge Moore has correctly observed that the Alabama state constitution and Alabama state law prohibit marriage based on the infamous crime against nature. Until the Supreme Court addresses the issue, says Judge Moore, state law and the state Constitution represent the supreme law of the state of Alabama. And since we live in a republic governed by the rule of law, that law must be followed. Judges, even federal ones, don’t get a pass. They have to follow the law, too. The hallmark of the American republic is that we live under the rule of law, not the rule of judges.
Judge Moore, therefore, is the one following the rule of law here. The federal judge is following, well, something else. It is this lone federal judge who is not following the law. It is this lone federal judge who is defying the law. Judge Moore is the one upholding it.
The headline of the Times’ article is “Judge Defies Gay Marriage Law.” (You can read it here.) But, of course Judge Moore is doing no such thing. Judge Moore is defying a ruling issued by an out-of-control, renegade judge who is destroying the law and the Constitution rather than defending it.
Now Judge Granade may issue a contempt citation to any judge who follows the rule of law and obeys Judge Moore’s directive. Here’s where it gets interesting. That contempt order must be enforced by somebody, and that somebody would be state law enforcement. What if no law enforcement official in the state is willing to enforce a manifestly unjust, illegal and unconstitutional contempt citation by locking up a law-abiding judge? What then?
At that point, the power of the federal judiciary to defy the law and the Constitution would be at least temporarily broken. The federal judge could fume and bloviate all she wanted, but if nobody is willing to throw probate judges in jail, she is powerless.
To paraphrase President Andrew Jackson, Judge Roy Moore is saying, “Judge Granade has issued her ruling. Now let her enforce it.”