In a stunning display of defiance against the judiciary, the U.S. Constitution, and the fundamental rule of law, on Sunday night Alabama Chief Justice Roy Moore forbade probate judges from issuing marriage licenses to gay couples. Moore’s interdiction explicitly flouts a federal court order requiring the state to begin recognizing same-sex marriages on Monday, a decision the Supreme Court declined to put on hold. Because probate judges are tasked with issuing marriage licenses, Moore has effectively blocked the clear command of the federal judiciary.
Breaking the law is nothing new for Moore: In years past, he has defied federal court orders to halt Christian prayers in his courtroom and to remove a massive granite monument to the Ten Commandments he had placed in the Alabama State Judicial Building. But this latest act of lawlessness is much more brazen and disturbing than these past skirmishes. Moore is, like Orval Faubus before him, standing athwart the federal judiciary and refusing to permit citizens to exercise their constitutional rights. At this point, Moore is more than just a grandstander or a provocateur—he is a lawbreaker.
It seems unlikely that President Barack Obama will channel President Dwight Eisenhower and send federal troops to Arkansas to walk gay couples into the courthouse. But that doesn’t mean gay couples have no means to remedy the constitutional violation to which Moore and Alabama’s law-breaking probate judges are subjecting them. Americans United for the Separation of Church and State plans to place the ad you can see below in the Montgomery Advertiser, offering to represent any gay couple whose constitutional rights are being abridged. Americans United has sued Moore before—and won. Now the group is eager for a rematch.
Although the National Review’s Ed Whelan has recently been championing Moore as a states’ rights hero along the lines of James Madison and Thomas Jefferson, legal commentators who have not lost their minds agree that Alabama is bound by the federal judiciary’s interpretation of the Constitution. As of Monday morning, some probate judges appear to be following federal law and performing gay marriages, but others are in open revolt. The facts here are simple: Gay couples in Alabama are being denied their constitutional rights thanks to the malice and arrogance of one man. Caught in the teeth of this constitutional crisis, these couples would do well to take a page from the desegregationists before them and lawyer up—the sooner the better.