Alabama Gov will not go after judges who follow Fed ruling

Timothy Kincaid

February 9th, 2015

Last night, Alabama State Supreme Court Chief Justice Roy Moore issued a pronouncement instructing the state’s probate judges to ignore the Federal Court ruling, the Eleventh Circuit’s response, and the refusal of stay by the Supreme Court of the United States and to instead follow his demands.

After four and a half pages of “whereas” statements, Moore declared the following:


To ensure the orderly administration of justice within the State of Alabama, to alleviate a situation adversely affecting the administration of justice within the State, and to harmonize the administration of justice between the Alabama judicial branch and the federal courts in Alabama:

Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.

Should any Probate Judge of this state fail to follow the Constitution and statutes of Alabama as stated, it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests “the supreme executive power of this state,” Art. V, § 113, Ala. Const. 1901, to ensure the execution of the law. “The Governor shall take care that the laws be faithfully executed.” Art. V, § 120, Ala. Const. 1901. “‘If the governor’s “supreme executive power” means anything, it means that when the governor makes a determination that the laws are not being faithfully executed, he can act using the legal means that are at his disposal.'” Tyson v. Jones, 60 So. 3d 831, 850 (Ala. 2010) (quoting Riley v. Cornerstone, 57 So. 3d 704, 733 (Ala. 2010)).

In other words, if you issue marriage license in accordance with the Federal ruling, the Governor’s gunna gitcha. He’s going to, well we’re not sure what, but he’ll gitcha.

And then Moore began posting on his Facebook page encouraging people to call the Governor and request that he go get those law-breaking Federal-court-ruling-followers.

To which Governor Bentley has now responded, “I may be a bigot, but I’m not as bat-poop crazy as that lunatic Roy Moore.” Well, not exactly in those words, of course:

I am disappointed that a single Federal court judge disregarded the vote of the Alabama people to define marriage as between a man and woman. I agree with the dissenting opinion from U.S. Supreme Court Justices Clarence Thomas and Antonin Scalia when they stated, ‘Today’s decision represents yet another example of this Court’s cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds.’ This issue has created confusion with conflicting direction for Probate Judges in Alabama. Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue. We will follow the rule of law in Alabama, and allow the issue of same sex marriage to be worked out through the proper legal channels.


February 9th, 2015

This has me wondering more and more about at least a 6-3 if not 7-2 ruling when SCOTUS makes their final decision. I think even “Scalito” is sick of dealing with this and will be happy to abandon Fat Tony and Uncle Thomas to the dustbin of history.

In 100 years, I bet not even African Americans will remember who Clarence Thomas was, and I bet that eats at him every day. And Tony will probably be found wandering around screaming legal terms at squirrels in a park somewhere in 30 years or so.

Ben in Oakland

February 9th, 2015

Nothin’ else is eating at Thomas.

Meanwhile, Judge Moore, I want to thank you for providing the definitive proof there is no God.

It’s the only way to explain why there are more horse’s asses in the world than there are horses.


February 9th, 2015

Matt, you think Scalia is going to live to 108? That’s pretty optimistic. :)
As for the Governor’s statement, it’s been more widely interpreted as saying he won’t go after probate judges who refuse the *federal* order, rather than Moore’s. Hence why the vast majority of counties in Alabama are refusing to issue marriage licenses today.


February 9th, 2015

I wanted to read his “Whereas” statements. I love that he keeps referring to same-sex marriages as “violating Alabama law,” as if he can’t even grasp the concept. In fact, he doesn’t even define these “violating Alabama law” marriages, as if it is obvious that the only types of marriages that violate Alabama law are same-sex marriages.

I also wonder at his final “Whereas”:

WHEREAS, neither the Supreme Court of the United States nor the Supreme Court of Alabama has ruled on the constitutionality of either the Sanctity of Marriage Amendment or the Marriage Protection Act

Would he really respect a ruling from SCOTUS that overturned Alabama’s anti-gay laws, or is that simply a convenient excuse?


February 9th, 2015

Ryan, it wouldn’t be the Governor’s job to go after Probate Judges that ignore the Federal Court ruling, would it? That seems to be a Federal matter, not a State’s problem. Of course, it is a lose-lose for those Judges: face the wrath of state officials and (possibly) voters, or face the wrath of the federal court system.


February 9th, 2015

Well, the response to the Governor’s statement was to refuse to issue licenses nearly en masse. So draw your own conclusions from that. Also, if you parse out his statement, he starts with “I agree with Scalia and Thomas” and there’s never a “but” the rule of law must be followed or anything like that. It’s just, “I agree gay marriage is wrong and I won’t punish any probate judges for following the law”. He pretty clearly thinks the law is anti-gay marriage.


February 9th, 2015

The assumption is that the Probate Judges are responding to the governor, and not to some other issue (personal objection, Judge Moore, etc.). Further, the “issue” has been worked out through “the proper legal channels.” So, he would “complicate the issue” by telling them to ignore the federal court ruling, rather than the rantings of a state judge with no technical standing.


February 9th, 2015

IANAL, but from what I can tell, the only action the Governor has a right to take is if he thinks a judge is violating AL law.

So my read on it is the same as Timothy’s: The Governor will not act against judges who decide to obey the FEDERAL ruling, i.e., those who WILL perform SSMs.

If they choose to violate the Federal order, then they are at their own peril, since Moore can’t protect them in any way, shape or form. Although I am sure his “foundation” will try to reimburse them for any expenses.

In almost any other state, the only
bench Mr. Moore would sit on would be in a park somewhere (hey–maybe he can join Scalia yelling at the squirrels). He’s hardly a ringing endorsement for the University of Alabama Law School and makes me question their accreditation…

Priya Lynn

February 9th, 2015

MattNYC said ” And Tony will probably be found wandering around screaming legal terms at squirrels in a park somewhere in 30 years or so.”.

LOL, you win the internet.

Priya Lynn

February 9th, 2015

Ryan said “As for the Governor’s statement, it’s been more widely interpreted as saying he won’t go after probate judges who refuse the *federal* order, rather than Moore’s. Hence why the vast majority of counties in Alabama are refusing to issue marriage licenses today.”.

As I read it it says he won’t go after probate judges regardless of whether the ignore the federal order OR the state order.

“I will not take any action against Probate Judges…allow the issue of same sex marriage to be worked out through the proper legal channels.”

Eric Payne

February 10th, 2015

Then, what comes next? Instead of schoolhouses, is the National Guard going to be at the courthouse door? Does this President have the stones to be a modern LBJ? And why, today, do I feel both so damned old and tired of this crap, yet so… young, reliving sentiments in the moment that I haven’t felt in 50 years?


February 10th, 2015


I am not sure it needs to come to that. As has happened in plenty of places–including new York State–the legal process has enjoined or removed those who do not obey the law/fail to perform the duties of their office.

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