MONTGOMERY, Ala. — As the days and hours ticked by until gay and lesbian couples began lining up for marriage licenses at Alabama courthouses, state Chief Justice Roy Moore said he kept waiting for someone to try to stop it.
“I was waiting on others to take a stand. They did not. They would not,” Moore, 68, said in an interview with The Associated Press.
So the chief justice, never shy about taking on a fight, even a losing one, acted. He fired off a missive to state probate judges to refuse the marriage licenses to gay couples, saying they weren’t bound to adhere to the ruling of the federal judge who declared Alabama’s gay marriage ban unconstitutional.
Alabama’s chief justice, previously best known for being removed from office for refusing to move a 5,300-pound Ten Commandments monument from the state Supreme Court building, has been thrust back into the national spotlight over his fight to block gay marriage from coming to Alabama.
Moore acknowledges that Alabama courts will have to go along with whatever the U.S. Supreme Court rules on same-sex marriage later this year. But until then, he said, the fight is not over.
“The ruling of the Supreme Court would bind the state courts. That’s the law. That doesn’t make the Supreme Court right in making such a decision,” Moore said.
Moore said decision legalizing gay marriage would be among the court’s greatest mistakes – a decision he would classify alongside rulings that allowed racial segregation, slavery and abortion. Moore said he would refuse to go along with it in his judicial opinions and would dissent or recuse himself in any cases involving same-sex marriage.
While some judges were following Moore’s advice, 48 of Alabama’s 67 counties on Wednesday were issuing, or willing to issue marriage licenses, to same-sex couples, according to the Human Rights Campaign, a national gay rights group that has kept a running tally.
“Freedom to marry has won,” Richard Cohen, president of the Southern Poverty Law Center, which has filed an ethics complaint against Moore. “Roy Moore’s actions have made us look like the most homophobic state in the nation.”
U.S. District Judge Callie Granade on Jan. 23 ruled Alabama’s gay marriage ban unconstitutional and enjoined the state attorney general from enforcing it. The U.S. Supreme Court refused to stay the decision and Alabama became the 37th state – and the first in the center of the conservative Deep South – where gays and lesbians wed.
Alabama probate judges were not defendants in the case, Moore argues, and thus are not subject to a direct court order. He also said they are part of a parallel state court system that doesn’t have to submit to Granade’s views.
“You’ve seen that in this case where you have one federal judge who is reaching out and trying to bind the whole state. It is improper,”
Henry C. Strickland, dean of the Cumberland School of Law at Samford University, said Moore has a technically correct argument that probate judges aren’t “absolutely obligated” to issue the licenses to gay couples.
However, he said, couples who are denied marriage licenses could file their own lawsuits or perhaps join the existing case. Moore said another judge might rule differently. However, Strickland said they will likely hold that the state has already fought and lost before Granade.
Moore argues that no federal court, even the U.S. Supreme Court, has the right to define marriage.
“You’re taking any definition of a family away. When two bisexuals or two transgendered marry, how large is that family? Can they marry two persons, one of the same sex and one of the opposite sex? Then, you’ve got a family of four or how many?”
Fighting, in one way or the other, has been a trademark of Moore’s, a West Point graduate, former kickboxer and military police officer in Vietnam. In the 1990s, he was sued for hanging a homemade wooden Ten Commandments plaque in his courtroom while a county judge.
After being elected chief justice in 2000, Moore put 5,200-pound Ten Commandments monument in the state judicial building. He was removed from office in 2003 after refusing to obey a federal judge’s order to remove it.
Article continues belowHis critics have accused him of grandstanding for politics. Moore said there are no political calculations in his fights, noting how his Ten Commandments stance put him off the bench for nine years.
Moore’s actions have drawn inevitable comparisons to former Gov. George Wallace’s 1963 largely symbolic “stand in the schoolhouse door” aimed at preventing desegregation at the University of Alabama, nine years after education segregation was ruled illegal.
Moore said there is another difference.
“George Wallace moved,” he said, noting how the former governor eventually stepped aside.
“I can’t move from my position because I’m bound to uphold the Constitution,” Moore said.
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