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.