Bench Memos

Alabama Chief Justice Roy Moore’s Guidance to State Probate Judges

In his capacity as administrative head of the state judicial system, Alabama chief justice Roy Moore has sent a memo to state probate judges advising them that the federal-district court rulings against Alabama’s marriage laws “do not require you to issue marriage licenses that are illegal under Alabama law.”

Given my previous discussions of the question whether state officials are always obligated to comply with federal-court orders, I should emphasize that the position taken by Moore at this time is far more modest than the robust assertions of state authority that I suggested may well be defensible. In particular, Moore sets forth two propositions, both of which seem well grounded:

1. Moore first argues (pp. 4-9) that state probate judges are not bound by the federal-court orders. By their terms, the orders apply to the state attorney general “and all his officers, agents, servants, and employees, and others in active concert or participation with any of them.” But, Moore explains, state probate judges, in addition to not being parties to either case, are “members of the judicial branch of government” and are thus not officers, agents, servants, or employees of the attorney general. Nor are they in active concert or participation with the attorney general (or with his officers, etc.)

2. Moore next explains (pp. 9-13) that state probate judges need not give precedential effect to the federal-court rulings, as it is widely recognized that state judges are not bound to follow lower federal-court decisions on federal constitutional questions.

As I read it, nothing in Moore’s reasoning would be altered if the Supreme Court denies Alabama’s pending request for a stay of the federal court’s orders. 

Most Popular

Politics & Policy

The Rise of the Abortion Cheerleaders

Is abortion a sad and unfortunate reality — regrettable, as we are sometimes told, but often necessary — or is it a breezy nothingburger, completely “normal,” and something to be giddily celebrated like a last-minute NFL touchdown?  For a long time, the abortion lobby has had difficulty deciding. This ... Read More

Europe Needs to Grow Up

It was a hot and difficult summer. And Europeans were pained to hear the blunt assessment that the U.S. would not be able to forever sustain NATO without greater investment on their part. The alliance was heading for “collective military irrelevance” and the current state of affairs was “unacceptable,” ... Read More

Reciprocity Is the Method to Trump’s Madness

Critics of Donald Trump claim that there’s no rhyme or reason to his foreign policy. But if there is a consistency, it might be called reciprocity. Trump tries to force other countries to treat the U.S. as the U.S. treats them. In “don’t tread on me” style, he also warns enemies that any aggressive act ... Read More