Chief Justice Roy Moore

In the 1960s, Alabama earned a special place in U.S. history. Now, they're at it again; this time in the context of the same-sex civil rights movement.

Chief Justice Roy Moore, from his re-acquired seat on the Alabama Supreme Court, has issued a letter to each of the state's 68 probate judges, instructing [warning] them to follow state law, and to disregard a federal ruling that struck Alabama's state constitutional ban on same-sex marriage. In Alabama, marriage licenses are issued by probate judges.

Now ole Justice Moore, oft-described as a legal "firebrand", has a penchant for making headlines. A devout Baptist, West Point graduate, and Vietnam veteran, he garnered national headlines for himself when he ordered a set of gigantic granite tablets of the 10-Commandments installed in Alabama's Judicial System building. [They were removed by federal court order as was Justice Moore, by a judicial ethics panel; but he was re-elected in 2012.]

On the upside of the good justice's recent act, it does focus legal scholars [and federal jurists] on the precise nature of federalism and the supremacy clause in the 21st Century. Can a state judge contravene a ruling from the federal court on an issue of constitutional law? We here at the Law Blogger believe the answer is "no". Justice Moore, on the other hand, does not believe that the definition of marriage should be left to federal judges.

Justice Moore's letter of instruction to the lower courts caused confusion in the Alabama courts this week. Marriage licenses were issued to same-sex couples by the probate judges in the larger cities of Birmingham and Montgomery. Most probate judges in the other counties, however, declined to issue licenses to gay couples while others refused to issue licenses to any couple until the matter is sorted out. In one case, lawyers for a gay rights group unsuccessfully attempted to hold a probate judge in federal contempt of court.

On an interesting procedural note, the SCOTUS has declined to get involved; like the 11th Circuit Court of Appeals, the High Court did not issue a stay pending a review on the merits of the federal judge's decision. Usually, as here in Michigan, a federal ruling that nullifies a state's constitutional provision is stayed pending a full appellate review.

At what point do the citizens of a particular state get to decide their own fate, either through state legislation or via a state constitution? In the case of Alabama, the constitutional ban on same-sex marriage was approved by 81% of the vote back in 2006. Yet, as in the case of slavery, education and interracial marriage, are there some constitutional standards that just cannot be breached no matter how loud the local voices?  Is this one of those issues?

That is what the Supreme Court is going to decide in June. Stay tuned and we'll bring it to you right here.

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