Why I Wish There Were More Like Moore

What has happened in Alabama this week regarding the marriage issue is truly remarkable on a number of fronts. But in a sense, the most important aspect of what is taking place transcends the specific question of the definition of marriage. In fact, our lack of understanding about what is taking place may well explain why we’re debating marriage in the first place.

The situation in Alabama is not as simple as many in the press would lead us to believe. It is true that one federal district court judge did rule that Alabama’s voter-approved constitutional amendment defining marriage as one man and one woman violated the U.S. Constitution. And it is true that Alabama’s elected Chief Justice directed the probate judges who issue marriage licenses in Alabama to ignore that judge’s ruling.

However, what has really been ignored is that other challenges to the Alabama marriage law are pending in two other different federal courts in Alabama. We don’t know yet how those two federal judges will rule. And that fact matters.

Under our Constitution and under federal judicial practice, the decision of one federal district judge is not binding on another federal district judge. As recently as 2011, the U.S. Supreme Court said, “A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”

In other words, the Supreme Court has said that a decision by one federal district is only what we lawyers called “persuasive authority,” meaning a judge may find the constitutional reasoning of another judge persuasive. But, if the other judge does not, then consistent with that judge’s own oath to uphold the Constitution, he or she can come to a different conclusion.

In other words, federal constitutional jurisprudence is not so imprudent as to allow one judge, who is fallible, to decide for all other federal (or state) judges what the Constitution says. So, Justice Moore wisely said, in essence, Alabama probate judges cannot allow one judge in one district to decide what the constitution means in other districts that might decide the question differently. If you think there’s “chaos” in Alabama now, let another federal judge in Alabama rule the other way and see what you have then!

But that’s not all. Justice Moore rightly recognizes that our government system is intentionally composed of checks and balances, one of which is the right of each state to assert its sovereignty against those in the federal government that would encroach against it, whether it’s the President, Congress, or a federal judge.

In other words, not only can one federal judge not bind another federal judge, but one federal judge cannot bind a whole state composed of elected officers who have an equal duty, right, and power to uphold the constitution as they understand it. That is why Justice Moore said that its state’s probate judges are not required by law to bow down to any federal court other than the U.S. Supreme Court.

What Justice Moore did is so shocking to us only because we have so little understanding of our form of government, and that itself does not portend well for our country. I’m reminded of what Alexis de Tocqueville said:

“If the lights that guide us ever go out, they will fade little by little, as if of their own accord. Confining ourselves to practice, we may lose sight of basic principles, and when these have been entirely forgotten we may apply the methods derived from them badly; we might be . . . only able to make a clumsy and an unintelligent use of wise procedures no longer understood.”

Sadly, it’s because those lights have gone dim, as evidenced by the reaction to Justice Moore, that we are now debating whether the constitution forbids defining marriage as the relationship of one man and one woman. We might not be doing that if we had more state-elected officials like Justice Moore.


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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