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Wednesday, February 11, 2015

Dorf on Roy Moore and Alabama

Mike Dorf's take on Roy Moore and the events in Alabama. Mike concludes "that while Chief Justice Moore's memo was a lawyerly piece of work, it ultimately does not advance his (distasteful) cause. It's at best a cover for his Faubusian agenda." He argues that Moore ultimately was playing a losing hand because couples always could sue the probate judges in federal court (because, as I have argued, issuing the licenses is not a judicial function). In playing it, therefore, Moore was simply trying to play Orval Faubus (or George Wallace, to keep it in the same retrograde state).

I agree that Moore likely is doing all this for bigoted reasons. But that is not necessarily established by the fact that the probate judges could be sued and enjoined. I never read Moore as denying that or denying that this would change the analysis and their obligations (certainly some probate judges recognized as much). Moreover, what difference should it make that Moore's position will ultimately prove a loser? The question is whether it is wrong to force the plaintiffs go through the process of establishing their legal rights and of not departing your preferred position (non-issuance) unless formally compelled to do so, even when you know exactly how it will play out (and even when it likely will cost the taxpayers attorney's fees).

There is an obvious comparison between Alabama and Florida. In both states, officials charged with issuing licenses (county clerks in Florida, probate judges in Alabama) took the position that they were not bound by the initial district court order or opinion invalidating the state ban. And in both, the federal court issued a "clarification" that the earlier injunction did not compel any non-parties to issue licenses, but the Constitution did (whatever that means). But then they part ways. In Florida, the county clerks folded their tents following the clarifying order and began issuing licenses across the state,* although I they were not legally compelled to do so by that clarification and did so only as a strategic choice of avoiding being sued. But the Alabama probate judges, and Moore, have not done the same; unlike the Florida clerks, they seem intent on making the plaintiffs take the steps of obtaining those individualized federal injunctions.

* Mostly. Clerks in several counties avoided having to issue licenses to same-sex couples by ceasing issuing licenses at all.

So two questions: 1) Why is Alabama playing out differently. Is it Moore and other officials playing Wallace/Faubus by demanding formal legal processes? 2) Is it wrong of them to demand those processes be followed (and by that I mean not merely less preferable or more expensive, but morally or legally wrong)?

Posted by Howard Wasserman on February 11, 2015 at 12:44 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Agreed, although the direction of the tide has become so obvious.

Because it may be that the C.J. (not the court, the Chief himself) wields administrative authority over all the judges in the state (much as the AG or Governor wields administrative authority over all executive officers in the state). Again, I don't know Alabama law on this.

Posted by: Howard Wasserman | Feb 11, 2015 2:03:21 PM

If we're talking about legal technicalities, how does Chief Justice Moore have the ability to issue any kind of order like this on his own? Even assuming the Alabama Supreme Court has the ability to issue supervisory advisory opinions like this, I doubt one justice can by himself.

Posted by: Tyler | Feb 11, 2015 1:13:57 PM

"He argues that Moore ultimately was playing a losing hand because couples always could sue the probate judges in federal court..."

Doesn't even that assume too much, as different district judges (at least in different districts in Alabama, assuming suits in the district where Judge Granade sits would be assigned to Judge Granade) could decide this issue differently? It's only a possibly losing hand.

Posted by: Asher | Feb 11, 2015 10:36:55 AM

I don't mean to be a jerk by saying: it is good that you have finally come to these questions after working in sterile legalism for so long. But they are not especially difficult questions.

To answer (1) fully would require providing you with a long explanation of Alabama's electoral politics and office-holder behavior for the last sixty years. The short version is that Alabama has long had, and still has, more overt anti-federal anti-minority behavior by more officeholders than other states do, and it seems to bring success at the ballot box.

The answer to (2) - "morally" that is - depends entirely on the justice of the underlying issue. So here, the answer is "yes."

Posted by: Sam | Feb 11, 2015 7:26:52 AM

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