The US Supreme Court has set a precedent upholding the right of states to define marriage as the union of husband and wife. All federal and state judges—including those in Alabama—are bound by that precedent.
In a recent post for the Public Discourse, NOM Chairman Dr. John Eastman outlines the underlying questions and facts that current developments in Alabama are bringing to the surface. When Alabama Supreme Court Chief Justice Roy Moore ordered probate judges to withhold issuing marriage licenses to same-sex couples, news stories abounded with accusations of discrimination on the part of Chief Justice Roy. After all, a federal district judge had already declared that the law defining marriage as between a man and woman is unconstitutional: surely Moore’s stance would be swiftly dismissed.
However, while same-sex marriage proponents cried “injustice” the entire Alabama Supreme Court ratified Chief Justice Moore’s stance with a 7-1 ruling. As same-sex marriage proponents continue to accuse Alabama of unconstitutional actions, Dr. Eastman reminds us that we have not one, but two judicial systems in America, and explains why a single order by a federal judge does not decide what the Constitution “really” says.
Federal courts exist side by side with state courts, and both have a duty to follow the US Constitution. Indeed, as Article VI of the Constitution makes clear, “All . . . judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” Decisions of the lower federal courts—what the Constitution calls “inferior courts”—are not binding on the state courts. If the lower federal courts in a state interpret the Constitution in a way that conflicts with the interpretation adopted by the state courts, neither decision has binding effect on the other.
While a federal district court order declaring a state law unconstitutional and enjoining its enforcement can have statewide effect if there is a statewide official involved in the case before the court, that order can only bind the defendants named in the suit, their officers and agents, and “other persons who are in active concert or participation with” them, as specified in the Federal Rules of Civil Procedure. The order cannot bind people not before the court or acting in concert with them.
Under Alabama law, probate judges—who are responsible for issuing marriage licenses in Alabama—are judicial, not executive officers, and are entirely independent of the executive branch of government. Therefore, the order issued to the Attorney General of Alabama did not and could not bind probate judges.
Dr. Eastman also explains that it was not Chief Justice Moore who failed in his duty, but Judge Callie S. Grande, the federal district judge who struck down the Alabama law defining marriage as between one man and one woman:
...the ethical considerations that led some to chastise Chief Justice Moore were misdirected. It is federal district judge Callie Granade who acted lawlessly by failing to follow existing Supreme Court precedent that remains binding on her. Indeed, were Chief Justice Moore to follow Granade’s order, he would be violating his duty to comply with the binding authority of the Supreme Court, in deference to a lawless order by a single federal trial court judge. In a well-reasoned and lengthy opinion adopted by a 7-1 vote, the Alabama Supreme Court has concluded just that.
You can read Dr. Eastman’s powerful article here, which not only explains what is happening in Alabama, but why states have every right to define marriage as the union of one man one woman.