By now everyone knows that Judge Roy Moore has ordered probate judges in Alabama not to comply with a federal district court ruling that homosexuals must be issued marriage licenses in that state for their "marriages." Moore is acting consistently with his long-held view that state courts and officials (such as governors) have standing to interpret the Constitution, as well as with his legal opinion that probate judges are bound by the laws and Constitution of Alabama.
There is something especially angering about the fact that leftists and (unfortunately) some Christians accuse Moore of abandoning the rule of law rather than the federal courts. One wonders if there is anything, anything at all, that would bring some allegedly conservative droids to the realization that it is the courts that are lawless when they make stuff up, lie, and tell us that it is in the U.S. Constitution. We have now reached the point of reductio and beyond, and they are still calling it the "rule of law" to follow mindlessly whatever the federal courts say. What would it take? Is there anything? If a federal court stated that a man can marry a dolphin and ordered that marriage licenses be issued in Ohio for human-dolphin pairs, would everyone suddenly wake up and say, "Wait, following this can't be the rule of law"?
But I'll bet not. It seems that, for nearly everyone in this country, with a few shining exceptions like Judge Moore, robotically doing whatever we are ordered by federal courts just is the "rule of law."
And that is a travesty. For if postmodernism rules in our courts, if the Constitution or other laws can just mean whatever tom-fool thing the judges say, then there is no law at all. The whole point of law is that it is to have a meaning which others can understand.
Interestingly, Wesley J. Smith makes this point with respect to something entirely different this week. He is rightly exercised about the fact that an assisted suicide advocate in California is trying to circumvent explicit California law against assisted suicide by asking a court to define "aid in dying" by a doctor as "not assisted suicide." Smith, who is a lawyer, has this to say about this attempt:
This is utter nonsense; Dadaism as a legal theory. [snip] I can say that if redefinitional legalization happens, the law is not only an ass but a profoundly corrupt ass. If courts can legalize an act that a constitutional statute clearly and unequivocally bans through blatant word prestidigitation, we are no longer free.
Or to put it another way: You can paste wings on a dung beetle and call it a butterfly, but it is still a dung beetle with wings pasted on. However, if courts call the modified insect a butterfly, our system of ordered liberty is over.
Smith is always extremely careful not to make any statement about (much less against) the homosexual agenda, and indeed I believe he still considers himself a political liberal of sorts. So who knows whether he would want to apply these words to the courts' lawless redefinition of marriage and their imposition of this redefinition on everyone else. But what he says applies, nonetheless, and it is a serious matter. If courts can make stuff up and we are bound to follow it, if legal dadaism reigns, then we are no longer free.
This is why I have always held that one's constitutional theory is an important matter above and beyond the specifics of the decisions one comes to. This is why Antonin Scalia's, Robert Bork's, and (presumably) Roy Moore's approach to legal meaning is important. I know that there have been some conservatives who have been impatient with any sort of legal originalism, preferring a kind of "conservative living constitution" (if I may so put it) and accusing those who refuse to read conservative preferences into the Constitution of some sort of invidious "positivism."
But in what is happening to our country from the left, we see what it means for the Constitution not to have a stable meaning and for courts to have the power to state that their own moral preferences, whatever those might be, are actually in the Constitution, even when there is precisely zero historical or textual evidence for that and plenty of evidence to the contrary.
In fact, my only slight quarrel with Judge Moore is that in this interview he states that legally the lower courts will be bound by a ruling that comes from the Supreme Court itself. So if Tony Kennedy wakes up one fine morning this summer and writes an opinion that says that officials in Alabama and everywhere else must issue marriage licenses to homosexual couples, this would seem to mean that Moore believes they are so bound. However, there is some ambiguity in his statement, because he added that he doesn't believe that the court has the authority to redefine marriage. It would have been very interesting to ask him to elaborate on his opinion on that matter.
The federal judiciary is not supposed to rule us directly by their own diktat. That was never, never, never the Founders' vision for this country. The federal judiciary was not supposed to be able to hand down a ruling that says, "Alabama must define marriage in an entirely new way, and all Alabama probate judges must now issue marriage licenses in accordance with our new definition." If that can be done in the name of the U.S. Constitution (which, needless to say, supports no such thing), and if we as a people mindlessly go along with it, then we are not free.
Worse, if we believe that mindless obedience to legal insanity actually constitutes the rule of law, then we are not only unfree in our acts but also unfree in our minds. We will have become a nation of slaves.
God bless Judge Roy Moore.