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.
Comments (27)
To make an even narrower point, Lydia, there is nothing inherently lawless, even in a positivist sense, about this. The case is Searcy v. Strange, Attorney General of the State of Alabama. The district court judge who entered the initial ruling doesn't have personal jurisdiction over the individual probate judges who issue marriage licenses, and they aren't (to the best of my knowledge) in privity or under the control of the state attorney general. They therefore are not bound by the District Court's ruling.
Thus, for Moore to instruct them not to act as if they were bound by it is not defiance or lawlessness. It's just recognizing the inherent limitations of court orders and declining to grease the skids on the matter.
Posted by Titus | February 12, 2015 11:59 AM
Frankly, I find myself torn. I have gradually come to the conclusion that the US Gov't has entirely too much power over every facet of our lives and I have come to deeply distrust the law. I don't really think that our personal lives are any of the gov'ts business. We made a terrible mistake when we allowed the Gov't to have any say whatsoever in our personal lives. Reversing it is almost impossible now, but there it is. "Dadaism as a legal theory" is all too accurate.
Posted by Floyd Alsbach | February 12, 2015 12:35 PM
I'm with you on this Lydia (and Titus) but apparently, this guy thinks we are wrong:
http://thefederalist.com/2015/02/12/%e2%80%8bthe-supreme-court-trump-card-has-won-the-historical-argument%e2%80%8b/
Posted by Jeffrey S. | February 12, 2015 12:42 PM
Titus, you have a good point, and I believe that a commentator at Rod Dreher's site was making the same point.
So how would this apply if the case goes to SCOTUS and is decided the wrong way? Could the same point be made that probate judges, not being under the control of the state attorney general, would still not be bound by a SCOTUS ruling?
Posted by Lydia | February 12, 2015 1:04 PM
Floyd Alsbach, if you're concerned about too much govt. control, you should not be torn on this on any level--either as regards Moore's decision or as regards the substance of the issue of homosexual "marriage." Any notion that giving marriage licenses to homosexual couples will _decrease_ government involvement in people's lives is completely, utterly, disastrously wrong. And the same is true of attempting the literal impossibility of "getting the government out of marriage," aka abolishing civil marriage. But I'd rather not re-debate those substantive points as opposed to the legal point here. We've gone over those points quite a bit in other threads.
Posted by Lydia | February 12, 2015 1:15 PM
Jeffrey, Gabriel Malor is talking like a _real_ legal positivist. I define that concept as "believing that the law is a prediction about what those in power will do." Now _that's_ legal positivism. He really doesn't give a darn about what is actually _true_ concerning the set-up of our republic. Nor does he seem to give a darn about the consequences of letting the federal judiciary decide that we are all obligated to go out and stand on our heads on alternative Tuesdays, because that is buried somewhere in the Commerce Clause. (In other words, he doesn't address obvious reductios of the position that the Constitution means whatever the federal judiciary says it means.) He's just making predictions and saying that one side or the other "wins" or "won" because of what *has happened* in the past. The idea that the courts who threatened clerks with paying court costs for lawsuits against them were *wrong*, both legally and morally, doesn't seem to concern him in the slightest.
Frankly, I have very little patience with this kind of flippant descriptivist approach to law.
By that reasoning, abortion *really is* a constitutional right because, well, because "the other guys won." That's an extremely bad way to approach all of these questions.
Posted by Lydia | February 12, 2015 1:20 PM
Oh, while I'm at it, I should re-link this song, complete with Roy Moore allusion in the video (around the 2:26 mark). I had thought that the video contained a picture of workers actually removing Moore's 10 Commandments monument, but I can't find that clip now. Anyway, the monument is definitely there.
https://www.youtube.com/watch?v=eiJ_rqkGe9o
I have included it in a couple of past posts, including this one:
http://whatswrongwiththeworld.net/2011/07/a_blessed_july_4th.html
Posted by Lydia | February 12, 2015 3:22 PM
So how would this apply if the case goes to SCOTUS and is decided the wrong way?
SCOTUS rulings have to be based upon the same personal jurisdiction as the underlying case. Thus, when the SCOTUS invalidates a law as "Unconstitutional" technically the ruling only applies as to the specific litigants involved in the case. However, it then becomes precedent for other cases. So, I suppose one could continue prosecuting abortion, continue refusing to issue marriage licenses, etc., but the defense (or aggrieved party) could raise the SCOTUS precedent. Assuming the trial court follows the precedent, the charges would be dismissed, or an order would be issued to the clerk to issue the marriage license, or whatever. Of course, if the lower court judicial machinery just decided to ignore a particular ruling of the SCOTUS, I suppose it could. And even if it got enough resistance, the SCOTUS would have to rely on the executive to enforce it somehow (e.g., the civil rights clashes). But I am not holding my breath for widespread rebellion. Most prosecutors, legislators, judges, etc. just take what the SCOTUS gives. Hence why Judge Roy stands out so much.
Posted by c matt | February 12, 2015 5:41 PM
Thanks, C Matt, that's very interesting.
Ah, this fits with something mentioned in that annoying article linked above by Gabriel Malor. Evidently some judge or judges threatened clerks with charging them with court costs if homosexual couples sued to have court orders issued directly to the clerks. Presumably "someone" in the state mechanism could/would similarly threaten probate judges because, after all, we all have to follow what SCOTUS says.
Which is annoying as heck. Because actually, it would be pretty easy to envisage a completely orderly situation in which everybody in the relevant mechanism just ignored the federal ruling or rulings, even if from SCOTUS. If anything, that would be _more_ orderly than the mess we currently have.
Posted by Lydia | February 12, 2015 6:37 PM
I applaud Judge Moore and wish there were more like him.
But I wonder whether the argument presented here about court-made redefinition of marriage would apply to legislature-made redefinition too.
Are we free if the majority of legislature or even majority of citizens decide to redefine marriage in some arbitrary way?
For it seems that the courts have some pretty large faction of people with them. Otherwise they would not dare.
I also wonder if the present argument applies to previous political interferences with marriage, viz, the civil marriage and civil divorce.
Posted by Bedarz Iliaci | February 12, 2015 10:23 PM
Malor's thesis here is, in a sense, fundamentally realist. But it's also pragmatic. There is no practical way, within the confines of our extant system of jurisprudence, to combat the supremacy of the federal judiciary. It would take a herculean effort by the other two branches of Congress to limit the courts' jurisdiction (and to be effective, that effort might have to strip the courts of so much power that they themselves would invalidate the law as an unconstitutional abolition of the judiciary). Or it would take insurrection.
How will this play out if the Supreme Court issues a merits ruling on the topic? C Matt is basically right: the Supreme Court's rulings aren't any more binding on non-parties than the rulings of inferior courts. What the Supreme Court's rulings are, however, are mandatory authority for inferior courts and the litigants in them. So if the Supreme Court, either in Searcy or in the case out of the Sixth Circuit, enters a ruling that there is a 14th Amendment right to marry any organism you can bring with you to the appropriate state office, that ruling will not, by its own force, bind judicial officers who were not parties to the lawsuit. That is, no other county clerk or probate judge will face contempt charges simply for refusing to conduct himself in accordance with the ruling.
But, here is where the mandatory-authority issue kicks in. A frustrated applicant in such a jurisdiction simply has to walk into the appropriate federal court and file a complaint against the state officer saying "State officer refused me a marriage license. See this SCOTUS case." Because the Supreme Court case is mandatory authority, it would almost certainly be sanctionable for the state official to defend the lawsuit, because there's no non-frivolous argument for a district court ignoring a clearly applicable supreme court decision. (The sanctions include attorney's fees for the other side.) He will lose the case very quickly, and losing a lawsuit like that exposes you to (1) an injunction to issue the license and (2)court costs (in a case without hearings or discovery, only a few hundred bucks).
That was basically the approach the states took during desegregation: they told the federal judiciary "come and make us," and sure enough, the federal courts went and made them. The federal courts then spent the next fifty years effectively operating many of the South's public school systems.
Insurrection doesn't really sound like that bad an option.
Posted by Titus | February 13, 2015 8:52 AM
Thanks, Titus. I had probably run across the phrase "legal positivism" used for legal realism in an article long ago.
Yes, so the state official in this case is the clerk or probate judge, being sued personally in a lower federal court. Out of curiosity, suppose the person sets up a GoFundMe page, doesn't defend the suit, but pays the court costs, and still refuses to issue the license. What then? There is, in this scenario, an injunction to him personally to do so, but he doesn't.
I _assume_ federal marshals aren't sent out with guns to force him to do so at gunpoint. My guess is that his boss at the state level would just fire him and replace him with someone who would issue the license.
What I think dragging it out would take would be coordinated effort at the _state_ level (e.g., the state won't fire officials for refusing to issue the licenses, the state clerks/probate judges coordinate not to issue them), plus some money, and it would be interesting to see at what point or whether the feds actually get out real, live guns.
After all, in the case of desegregation the thing could be portrayed as "getting out of the way." In other words, here are the guns, you can't block the schoolhouse door.
In this scenario, the state officials are being required actually to _do_ something--namely, issue marriage licenses. How do you force people to do that in a literal sense of "force," as opposed to the _pressure_ that can be brought to bear by personal federal suits, garnishing a bank account for court costs, etc.?
But as you say, Titus, it is almost certain that that amount of pressure will be enough and that it will never come to actual force-force.
Posted by Lydia | February 13, 2015 9:20 AM
An enterprising state or county executive could hire a couple of ornery 85 year old people, with no assets, to issue some licenses, and carefully assign these cases to those oldsters. Then when the feds try to impose fines on them, the oldsters can say "gee, you can't get blood from a turnip." Let a judge try to find them in contempt of court and see where that gets him. If you are a judge and you try to put Great-grandpa in jail for contempt, you better not expect to show your face in the state again. And expect to have every other judge and attorney laugh in your face.
Posted by Tony | February 13, 2015 1:51 PM
How do you force people to do that in a literal sense of "force," as opposed to the _pressure_ that can be brought to bear by personal federal suits, garnishing a bank account for court costs, etc.?
As you say, that pressure will surely be enough. Hypothetically, assuming it isn't, it would eventually require the judicial branch (assuming it's the SCOTUS, here) requesting the executive branch via the armed forces to use physical force to remove the recalcitrant official from office, install a subservient one, and have the license issued. But the chances of it having to get that far are infinitesimal for the foreseable future. Was it Johnson (Andrew? Not LBJ) that said the SCOTUS has made its decision, now let it enforce it? I doubt we are at that level of separation any more.
Posted by c matt | February 13, 2015 3:43 PM
As for recalcitrant judges, most states have a judicial oversight panel of some sort (either as a committee of the State Supreme Court or the St. S. Ct. itself) - the aggrieved party would likely haul the recalcitrant judge before said panel for judicial misconduct, at which point I am sure said judge would be told what's what, get with the program, or find other employment. The vacancy is then usually filled by appointment from the governor. So effective resistance would require a lot of solidarity among the various branches of government against the federal encroachment, and I just don't see that happening. Particularly where one's career/party power could be advanced by removal of a political opponent from office.
Posted by c matt | February 13, 2015 3:51 PM
The judiciary's method of enforcing an injunction is generally the power to punish for civil contempt (disobeying a court order is contemptuous). So what would happen is the license applicant, having gotten his injunction and the state officer having disregarded it, would come back into the federal court and move to have the state officer held in contempt.
The federal judge could then either impose a per-diem fine on the state officer or order him jailed until he complies with the injunction. So you could very well have Marshals and guns.
I don't think there's a relevant check on federal authority here that would prevent a district judge from imposing standard contempt penalties on a state official.
Posted by Titus | February 13, 2015 6:56 PM
I've always found all of that a rather interesting, though academic, question. Who puts you in jail, and what jail do they put you in, for disobeying such a court order? Does a federal district judge have marshals at his own direct disposal to send out to put people in federal (?) prison for refusing to obey a court order? Like a personal little army of enforcers? Isn't there any issue of separation of powers there?
And it could get pretty ridiculous. I mean, *in theory* if not in practice a district judge could make an injunction to someone to do just about anything in response to a suit. He could even write an injunction ordering the state official not only to issue the licence but also to apologize to the couple to whom he'd refused a license and to state, personally, that he believes in homosexual marriage ("marriage"). And then put him in jail until he complied.
Posted by Lydia | February 14, 2015 12:03 AM
Lydia and Titus (and all),
I think you'll enjoy this little piece by Pastor Doug Wilson, which relates nicely to the questions at the heart of this original post:
http://dougwils.com/s7-engaging-the-culture/why-we-need-more-of-moore-and-also-less-of-moore-more-or-less.html#more-108466
Posted by Jeffrey S. | February 15, 2015 10:34 PM
Jeffrey, "homo-mirage," that's good!
I would have to say that the lesser-Moore doesn't embrace the doctrine of the Lesser Magistrate, at least not in practice, which is to say not at all. He should resign his position, therefore, and fight his battle as a mere layman, instead of under the pretense of being some sort of "leader" within the Southern Baptist communion hierarchy.
Posted by Terry Morris | February 16, 2015 3:30 PM
I was disgusted by Russell Moore's nonsense on this subject. Really disgusted. He doesn't know _this_ much (holds up fingers less than an inch apart) about the interesting legal issues involved, which we have been discussing in this thread, and yet he makes lofty pronouncements as from a great moral and Biblical height. He honestly thinks he knows what he's talking about when he clearly doesn't. What an pompous ass (in the British sense of "ass") he is being. Not that this is the first time that I have had occasion to think of R. Moore in such terms. Unfortunately, he is often _not_ a very sharp thinker, and yet he has been put into a position to be, allegedly, a kind of thoughtful conscience of the Southern Baptist Convention. Moore's the pity (pun intended).
Posted by Lydia | February 16, 2015 4:10 PM
Lydia, there is a lot I don't know about the Marshal Service, but from my reading: there is a US Marshal office for each US district court, and was originally assigned at least in a quasi sense as part of the judicial branch. To some extent the marshals were indeed directly under the orders of federal judges, and while specific marshals might not have been assigned to specific judges as their direct underlings, it amounted to something like that in smaller jurisdictions - though they always had duties other than carrying out judicial orders. However, eventually the Service came to be put under the Executive Branch as part of the Dept. of Justice. The Marshals are directly appointed by the President and serve at his pleasure. Thus: while in office their duties include carrying out the orders of the judges to effect the demands of the court, but their supervisors are Executive Branch and they can be relieved of office immediately by the President. In practice it is marshals who carry out arrests in pursuit of direct disobedience to federal judges. And who would jail those found in contempt of court for by a federal judge.
In my guesstimation, in order to have a relatively decent chance of success in defying a court order and have that NOT result in simply the marshals coming to put you in jail, we would need a high state judge (Roy Moore is perfect) working with a governor willing to utilize all state resources at his disposal to support state law and constitution. If worse comes to worst, the governor can assign state militia to protect state officials (including probate judges or even the governor himself) and tell the marshals: "We aren't handing over our state officials carrying out state law without a fight. We won't fire first, but if you shoot you will be starting a civil war. Do you really want to be the ones to start a civil war?" I am sure the marshals can mount a large operation, but doing so in the face of a large militia unit ready and seriously prepared would be a terrible blot on any president's record. If (along with a good governor and state supreme court) we had a president even half-way decent, he would order the marshals NOT to carry out the judicial orders. He could even point to precedent of sorts: states are defying federal law on the matter of illegal drugs, without federal response landing on them like a ton of bricks.
To me that seems like the best case scenario that is even slightly plausible. The odds are we won't get that kind of unified state opposition to federal tyranny. But we might, one state out of 50 isn't terrible odds.
Posted by Tony | February 17, 2015 10:16 AM
Lydia, do you think the other editors of Touchstone magazine share Russell Moore's convictions about Alabama judges disobeying federal judicial edicts about same-sex marriage?
Posted by Truth unites.... And divides | February 18, 2015 12:34 PM
No idea. I wouldn't jump to that conclusion at all. I know that even here on a blog one should never assume that we all agree with what one contributor says.
Posted by Lydia | February 18, 2015 1:37 PM
I was just curious. I've read some of Russell Moore's articles in Touchstone and they were much better than what he's saying today.
Posted by Truth Unites... and Divides | February 18, 2015 5:56 PM
His quality varies widely. Even wildly.
Posted by Lydia | February 18, 2015 6:13 PM
Lydia, your essay on Judge Roy Moore is brilliant. Judge Moore understands the Constitution far better than most people today. If a higher court comes down with a ruling that is unconstitutional, those supposedly affected by the ruling simply ignore it. This is called nullification. We, the people have a higher standing than the creature we created in the Federal government--legislative, executive and JUDICIAL. The Supreme Court is not the final arbiter of the law in this land. If they are wrong, We the people need to slap them down and be justified in following the law of the land. The Dred Scott decision would have been an excellent case to apply nullification to and the States could have hit one out of the park by writing the Supreme Court a letter telling them what they could do with their sorry decision.
It was unconstitutional and therefore, had no applicability. Same thing with Roe V Wade. The Constitution does not give us rights, rather our Creator has given us unalienable rights and the Constitution was created to limit government to protecting those rights. We have let this balance between We the people and government slip a little.
Posted by whirlwinder | February 27, 2015 10:23 PM
As Titus pointed out above, Moore is making an even narrower legal point, since no actual court order has been issued to the probate judges by any court following a SCOTUS ruling.
Posted by Lydia | February 27, 2015 10:53 PM