By Brian Lyman
Roy Moore said he offered advice to probate judges. Prosecutors said he hurled defiance at federal law.
In the end, the Alabama Court of the Judiciary saw nothing like guidance in the bolded text in the Alabama Chief Justice's Jan. 6 order telling the state's 68 probate judges they had a "ministerial duty" to stop issuing marriage licenses to same-sex couples in the face of federal orders and a U.S. Supreme Court decision.
"A disinterested observer . . . would conclude that the undeniable consequence of the January 6, 2016 order was to order and direct the probate judges to deny marriage licenses in direct defiance of the United States Supreme Court," an opinion handed down Friday and signed by the nine members of the panel said.
As a result, the court Friday suspended Moore without pay for the remaining 26 months of his term, saying the order violated his judicial responsibilities to remain impartial, promote confidence in the law and uphold the integrity and independence of the state judiciary.
It's the second time Moore has lost his position on the state's highest court. In 2003, the Court of the Judiciary removed Moore after he refused to obey a federal court order to remove a Ten Commandments monument from the Heflin-Torbert Judicial Building, where the Alabama Supreme Court sits. Moore was re-elected to the post in 2012 after two failed efforts to win the Republican nomination for governor.
Moore's attorneys said Friday they will appeal the decision to the Alabama Supreme Court. The suspension, which took place immediately, may not end Moore's political career but will likely bring his time on the bench to end. Age limits will prevent the chief justice from seeking re-election in 2018.
The chief justice remained unbowed in a statement Friday, saying the decision reflects "the corrupt nature of our political and legal system."
"This was a politically motivated effort by radical homosexual and transgender groups to remove me as Chief Justice of the Supreme Court because of outspoken opposition to their immoral agenda," the statement said.
The Judicial Inquiry Commission, which prosecuted the chief justice, did not return a message seeking comment Friday. Moore's opponents said it was the chief justice pursuing a political agenda.
"It's a great day for the rule of law in Alabama," said Richard Cohen, president of the Southern Poverty Law Center, which filed several ethics complaints against Moore over his handling of the same-sex marriage issue. "Justice Moore didn't recognize that he couldn't put his personal religious beliefs above his sworn duty to uphold the U.S. Constitution."
'Defiance of Obergefell'
Moore is an outspoken social conservative who unrecused himself from an Alabama Supreme Court in March case to pen an angry denunciation of Obergefell v. Hodges, the 2015 U.S. Supreme Court case that struck down state same-sex marriage bans six months before Moore's Jan. 6 order. But in that order and in his defense in his ethics trial, the chief justice and his defense team tried to downplay that. Moore and his attorneys focused instead on a case brought to the Alabama Supreme Court before the Obergefell ruling.
In the Jan. 6 order, Moore said that the Alabama Supreme Court was still dealing with a lawsuit brought in February 2015 by the Alabama Policy Institute (API) and the Alabama Citizens Action Program (ALCAP), both opposed to same-sex marriage. While the 11th Circuit Court of Appeals in October 2015 ruled that Obergefell abrogated the API case, Moore insisted that without a ruling from the Alabama Supreme Court, the effect of Obergefell on Alabama's marriage laws was uncertain.
"Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect," the order said, in bolded text.
That came despite Obergefell and earlier rulings from U.S. District Judge Ginny Granade in two pre-Obergefell cases -- Searcy v. Strange and Strawser v. Strange -- that blocked their enforcement.
The state's probate judges largely ignored Moore's order, but the state's Judicial Inquiry Commission did not. The JIC charged Moore May 6 with six ethics violations, which led to his suspension from the bench.
Justice Lyn Stuart has been acting as chief justice in his place. Gov. Robert Bentley's office said Friday afternoon they would not name a replacement, and would allow the state Supreme Court to operate with eight justices for the foreseeable future.
Moore and his attorneys argued in filings and Wednesday's ethics trial that the order aimed to advise probate judges on what they saw as conflicting federal and state opinions on same-sex marriage. Moore took the position that Obergefell applied only the plaintiffs who brought the lawsuit, not the country as a whole.
"I think it's like a status report," Mat Staver, Moore's chief defense attorney, said during Moore's trial Wednesday. "It's giving the status of where the Alabama Supreme Court is."
The chief justice denied ordering the state's probate judges to ignore federal law.
"Whether it's this issue or any other issue, I don't encourage anyone to defy a federal or state court order," Moore said near the end of his 90 minutes of testimony.
The Judicial Inquiry Commission dismissed those arguments. Attorney John Carroll noted that the Moore used the word "order" or "ordered" in the Jan. 6 document and that the U.S. Supreme Court put no limits on Obergefell's impact.
"Obergefell said it in black and white, all states," said Ashby Pate, an attorney for the JIC. "But (Moore's characterization) is also incomplete because the U.S. Supreme Court has ruled that its decisions are binding on all states."
The COJ Friday agreed with the JIC.
"A judge does not issue a 'status update' that 'orders and directs' that a law remain in effect," the opinion said. "Rather, a judge 'orders and directs' individuals to do something: in this instance, to comply with a law that is in 'full force and effect.' The January 6, 2016 order called for action -- and that action would have been in defiance of Obergefell and of the injunction in Strawser."
The court found that Moore's statement of the law to probate judges was "incomplete to the point that this court finds it was intended to be misleading," saying Moore "did not address the clear holding of Obergefell" in legalizing same-sex marriage. The opinion also noted that the U.S. Supreme Court rulings has held for decades its rulings bind everyone.
Moore and his attorneys also argued the chief justice had no choice but to issue the report because of approaching deadlines in the API case. The JIC called this a false dilemma, and the Court of the Judiciary Friday agreed with the JIC.
"There is a third option Chief Justice Moore fails to mention: He could have simply not issued the January 6, 2016 order," the court wrote.
Staver said in a statement Friday the chief justice "did nothing wrong."
"Today's decision by the COJ to suspend the Chief for the rest of his term throws the rule of law out the window," the statement said. "This system must be changed."
Eva Kendrick, Alabama state director for the Human Rights Campaign, an LGBT rights group, said in a statement Friday the HRC was "thrilled that justice has been done today."
"Roy Moore's bigoted rhetoric and unethical actions harmed LGBTQ Alabamians and emboldened those who would seek to hurt us further," the statement said. "We hope this is a turning point for our state. We must focus on electing politicians and judges who will move us forward, not backward."
No Alabama chief justice has completed a full six-year term in 21 years.
A long road to suspension
As Alabama moved toward the legalization of same-sex marriage in early 2015, the chief justice seemed to enter the debate like a voice from a mighty fortress. But whether Moore strode the jasper ramparts of the New Jerusalem or the crumbling mud brick walls of Jericho depended on what one thought he was defending. Where supporters praised him for standing up for their religious values against what they viewed as federal intrusion, Moore's opponents saw a man putting up a stubborn resistance against a God-given right.
After Judge Granade struck down Alabama's same-sex marriage bans in January 2015, Moore said lower federal courts had no binding authority on Alabama. On Feb. 8 of that year, a day before Granade's decision went into effect, the chief justice sent a letter to probate judges ordering them not to issue marriage licenses to same-sex couples.
While most state probate judges began issuing marriage licenses after Granade issued a second ruling a few days after Moore's order, the Alabama Supreme Court closed the same-sex marriage window in March. Ruling in the API lawsuit, the state's highest court ruled that it had the same authority as Granade to interpret the state's marriage laws; found those laws remained in effect and ordered probate judges to stop issuing licenses. Moore recused himself from the case.
The U.S. Supreme Court handed down Obergefellthat June, and most Alabama probate judges resumed issuing marriage licenses to same-sex couples. But the Alabama Supreme Court asked the parties in the API case for briefs on what the impact of Obergefell decision would be. When the Alabama Supreme Court entered the fall without making a decision, Moore sent memos to his fellow justices urging them to rule. The chief justice, who at the time was still recused from the API case, said it was time "to make a decision in this (API) case, one way or the other: to acquiesce in Obergefell and retreat from our March orders or to reject Obergefell and maintain our orders in place."
The chief justice's lawyers argued Moore was trying to get the state's high court to make decision in the API case, a position Moore took that position in testimony in his ethics trial Wednesday, saying he just wanted a decision, not necessarily one that went his way.
But the JIC said the memos showed his intent was to stop Obergefell, and cited Moore's exertions to block Granade's rulings. Carroll also hearkened back to Moore's refusal in 2003 to move the Ten Commandments monument and said the chief justice "learned nothing" from that experience.
"If he's not removed, then this will happen again," Carroll said. "There will be some issue . . . where the Chief Justice will use all the powers of his office to take his position (and) foster an agenda."
Moore's plans beyond the appeal are unknown. After his removal from office in 2003, Moore ran for GOP gubernatorial nomination for governor in 2006. He led Republican Gov. Bob Riley in some early 2005 polls, but Riley soon consolidated his support and routed Moore in the primary. Moore made a second attempt to win the nomination in 2010 but finished fourth.
The chief justice's statement Friday said nothing about his future plans, though Staver's said the decision showed "Montgomery has a long way to go to weed out abuse of political power and restore the rule of law."
Whatever the chief justice decides, the HRC's Kendrick said in a conference call Friday her group would work to elect officials who represent the state "equally and fairly."
"When we elect politicians and judges who promote discrimination from public office, their actions define our future," she said. "Their actions and rhetoric trickle down to affect the actions of all people in Alabama."
(c)2016 the Montgomery Advertiser (Montgomery, Ala.)