At this moment, Alabama is in a state of legal and judicial disarray. A federal judge has declared the state’s constitutional amendment defining marriage as a union between a man and a woman unconstitutional, and in response the chief justice of the Alabama Supreme Court has held that the ruling is not actually binding and has admonished subordinate Alabama judicial officials not to comply with it. This is a messy situation.
My title–“Judicial Lawlessness in Alabama”–will be applied by liberal supporters of same-sex marriage to Alabama’s Chief Justice Roy Moore. They would have some ground to do so. After all, it is not usually the duty of a state judge to tell other state judges that they are not to comply with a federal court order.
On the other hand, it is not as if Chief Justice Moore started the conflict. That was done by the federal judge, Callie Granade, who issued a ruling striking down Alabama’s laws regarding marriage. This point is made at length and in depth by Robert McFarland in a Public Discourse piece that is very well done. The whole thing is worth reading and pondering, because it is a thoughtful account of the kind of damage this whole fight is doing to our institutions. But I’ll offer the following summary of McFarland’s arguments for why Judge Granade’s actions were not those of a prudent and responsible jurist.
First, the ruling is almost wholly gratuitous. As McFarland notes, and as almost everybody knows, this issue is currently before the Supreme Court of the United States. As far as federal judges like Granade are concerned, it will be settled in a few months. Why, then, should Granade think it is necessary to get out in front of the Supreme Court in this way? If the Court upholds the right of states to define marriage as a union between a man and a woman, her ruling will be effectively voided by this summer. If it goes the other way, any constitutional infractions the state of Alabama is committing will be resolved by this summer. In this state of things, there was no need for her to stir up this hornets’ nest in this way.
Second, federal judges are supposed to consider themselves bound by existing Supreme Court precedent. As McFarland notes, the operative precedent at the moment is Baker v. Nelson (1972), in which the Supreme Court held that a dispute like this presented no substantial federal question. Moreover, McFarland also observes that Granade is also implicitly going against the Supreme Court’s ruling on the Defense of Marriage Act in the Windsor case in 2012. There, Justice Kennedy’s opinion for the Court suggested that Congress had no business dealing with the question of marriage because it is primarily a state issue. If that is the case, then why should a federal district judge need to interfere?
In general, I think it pretty bad for any federal district judge to void any law in the absence of a very clear reason to do it–its either being obviously in contradiction with the constitutional text, or obviously in contradiction with a controlling Supreme Court interpretation of the Constitution. Voiding democratically enacted laws on the basis of subtle and questionable constitutional reasoning is not something any court at any level should be doing. But if it is going to be done, it is certainly–if I may borrow an expression of President Obama’s–“above the pay grade” of a federal district court judge.