The Chief Justice of Alabama’s Supreme Court, Roy Moore, issued an order this week that instructed probate judges, who issue marriage licenses in that state, to stop issuing same-sex “marriage” licenses until the state Supreme Court decides how to apply Obergefell v. Hodges to its state’s marriage license laws. Liberals howled! How can he do that? How can a state Supreme Court trump the U.S. Supreme Court? Well, as he did back in March, Justice Moore is schooling ignorant Americans on fundamental principles of constitutional law. Read on so you won’t be one of the ignorant masses.
The first thing that must be remembered is that each of the state officials and officials of the local government created by state law takes an oath to uphold the U.S. Constitution. That necessarily means these officials must try to figure out how to apply the U.S. Constitution to the laws that states have.
And the second thing that must be remembered is that, as a part of the dual sovereignty that federalism represents, state courts can decide how to interpret the U.S. Constitution and how decisions by the U.S. Supreme Court “interpreting” the U.S. Constitution apply to state laws.
The third thing that must be remembered is that each of the branches of the state and federal governments can come to different conclusions as to what the Constitution requires. This is called the “separation of powers.”
This constitutional principle is what prohibits one branch of government from telling the other branches what they must affirmatively do. That is why presidents and governors sometimes refuse to carry out a law that Congress and the state legislatures, respectively, enact. Those branches of government—the executive and the legislative—are separate.
A fourth thing that must be remembered is that state courts can come to their own conclusions as to what the U.S. Constitution requires or how a U.S. Supreme Court decision should be applied. This is called federalism. And if litigants don’t like the state court’s conclusion, the proper remedy is to appeal it to the U.S. Supreme Court.
So, how do these principles relate to Judge Moore’s order? Very simply, Justice Moore said his court has a case before it asking what effect Obergefell had on Alabama’s marriage license laws, and Justice Moore wants the probate judges to maintain the status quo until the court figures it out.
Now liberals would say, “What’s so hard to figure out? Just do what the Supreme Court said and let same-sex couples get married.” It figures that liberals would be that simplistic in their thinking.
Before going further, let me ask a question. Can a law be valid and invalid at the same time? Or let’s put it in constitutional jurisprudential terms, can a law be constitutional and unconstitutional at the same time?
Most sane folks would say, “No.” Actually U.S. Supreme Court Chief Justice John Marshall, whose decision in Marbury v. Madison articulated the principle of judicial review said, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”1
So here is what the U.S. Supreme Court said in Obergefell:
“The state laws … are … held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and condition as opposite-sex couples.”
To the untrained legal ear, that sounds a little like saying your state marriage license law is “more or less constitutional.” Thankfully, it sounds the same way to the trained legal ear that is wiling to be intellectually honest.
But the Obergefell Court also said this:
“The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.”
Notice that both of these sentences represent the “holding” of the Obergefell court.
So, if a law can’t be valid and invalid at the same time or constitutional and unconstitutional at the same time, how does one “exercise” a “right to marry” under a law that is “invalid”?
Is there any wonder, then, that Justice Moore said in his order, “Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the ‘existing orders’”? How does a probate judge lawfully issue a license pursuant to an invalid law?
Liberals would say, “Because the Supreme Court said they should, that’s why!” To which Justice Moore and, to be honest, all state officials in every state should say, “And who is the U.S. Supreme Court to ‘commandeer’ the state government and purport to enact for a state a state law that the state has not enacted?”
Separation of powers prevents the judicial branch from enacting legislation, and federalism prevents the federal government, including the judicial branch, from dictating to a state what statutes it must affirmatively enact.
That is the issue at stake in Alabama (and actually should be everywhere), and it is a very grave and important constitutional issue. Most states, under the direction of their attorney generals, have given up on state sovereignty and have basically advised their state officials to allow the Supreme Court to commandeer their state legislatures. Our Founding Fathers would have never imagined that state officials would be so quick to let the federal government tell them what to do.
Thank you, Justice Moore, for showing us the constitutional principles many of us have forgotten and that we need to fight for.
- Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969), quoted by the U.S. Supreme Court in NFIB v. Sibelius (first Obamacare case) in 2013.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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