Federal Court Precedent: A Defense of Judge Roy Moore and the Alabama Supreme Court

The US Supreme Court has set a precedent upholding the right of states to define marriage as the union of husband and wife. All federal and state judges—including those in Alabama—are bound by that precedent.

Alabama Supreme Court Chief Justice Roy Moore made news last month when he ordered probate judges in Alabama under his judicial supervision not to issue marriage licenses to same-sex couples, even though a federal district judge had held the law defining marriage as a union between a man and a woman to be unconstitutional. Howls of “lawlessness” went up in the corridors of the nation’s elites. Those cries will undoubtedly grow even louder now that the entire Alabama Supreme Court has issued a 7-1 ruling ratifying Chief Justice Moore’s stance.

Our nation’s elites have convinced themselves that a judicial order by a single federal court trial judge, no matter how wrong or contrary to existing precedent, is the “law of the land” and must be followed unquestioningly. Some even compared Chief Justice Moore’s actions to those of the late Governor George Wallace standing defiantly in a schoolhouse door to block implementation of the US Supreme Court’s desegregation decision. The ghost of the late Justice Charles Evans Hughes, who infamously said that “We are under a Constitution, but the Constitution is what the judges say it is,” is undoubtedly smiling.

We have come to expect such claims of unfettered judicial supremacy from the left, but Chief Justice Moore and his fellow justices on the Alabama Supreme Court have by far the better argument.

Thank you for referencing that article ForYourChildren. Please bear in mind that the following critique is directed at the article and not at you.

As FReepers read the following comment about the referenced article, please bear in mind the following. There would probably be no concern how “loose-canon” pro-gay activist justices are going to decide the constitutionality of gay marriage if the ill-conceived 17th Amendment had never been ratified, state lawmakers foolishly giving up the voices of the state legislatures in Congress by doing so, particularly with respect to the Senate’s required approval of justices nominated by the president.

From the referenced article:

In 1972, the US Supreme Court upheld a decision by the Minnesota Supreme Court holding that a state’s man-woman marriage law was not unconstitutional. That decision, Baker v. Nelson, is binding on the lower courts, both federal and state, even though it was only a summary disposition. Many in the legal academy, and many lower federal courts, believe that the Supreme Court will itself not adhere to that decision when it rules later this year on the marriage cases from Ohio, Michigan, Kentucky, and Tennessee, because subsequent doctrinal developments have, in their view, undermined the precedential value of Baker [emphasis added].

Regarding the emphasized part of the last sentence above, will somebody please translate that legalese English into regular English? I regard it as nothing more than meaningless legal sophistry.

Also, note that the article made no mention of the following. The Founding States had made the 10th Amendment to clarify in general that the Constitution’s silence about issues like marriage means the following two things.

The states had reserved government power to regulate marriage uniquely to themselves, not to the federal government.
Gay marriage is not a constitutionally enumerated right.

So the states are free to make 10th Amendment-protected laws which prohibit constitutionally unprotected gay marriage, as long as such laws don’t also unreasonably abridge constitutionally enumerated rights.

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