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February 26, 2015 Practice Points

Alabama Chief Justice's Tantrum Creates Hodgepodge of Same-Sex Marriage Policies

By Minla Kim

Alabama Chief Justice Roy Moore is in the news again for his defiance against a federal court's order. Moore issued a letter late Sunday advising probate judges to ignore U.S. District Judge Callie V.S. Granade's holding that Alabama's ban on same-sex marriage was unconstitutional and to instead follow the state's law. Those who fail to follow his order would face a reprimand by the governor, according to the letter.

This is not the first time Moore has received the media spotlight. In 2003, he refused to remove a monument of the Ten Commandments that he had installed in the state judicial building when a federal appeals court concluded that the display was an unconstitutional endorsement of religion. Consequently, an ethics panel decided to remove him from the post. He was re-elected in 2012.

In an interview with CNN, Moore said, "No judge of the United States or the federal district court has the right to invent the definition of marriage, which is not even contained in the United States Constitution . . . ." Although he clearly expressed that he views marriage as a union exclusively between a man and a woman, he claimed that "this [wa]s not about [his] feelings, it[] [was] about the law." Moore justified his defiance by citing Supreme Court cases that were later overruled, such as Plessy v. Ferguson,which upheld racial segregation. However, Moore's critics compare him to George Wallace, the former Alabama governor who resisted the integration of schools in 1963.

Regardless of Moore's view on marriage, the state's probate judges should follow the federal court order, pursuant to the Supremacy Clause of our Constitution.

As of February 12, 23 out of 67 counties in Alabama are issuing marriage licenses to same-sex couples. Meanwhile, 26 counties have completely stopped issuing marriage licenses to anyone.

The Supreme Court has agreed to determine bans on same-sex marriage in Ohio, Tennessee, Michigan, and Kentucky during this term.

Keywords: litigation, minority, trial, Alabama, Roy Moore, ban, same-sex marriage, gay marriage

Minla Kim is with Goldberg Segalla in Buffalo, New York.

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