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Alabama Supreme Court won’t get involved in same-sex marriage legal wrangling UPDATED

LGBT Legal Cases Marriage equality Marriage Equality Trials

UPDATE: Meanwhile, Liberty Counsel is asking the state supreme court to mandate that probate judges stop issuing marriage licenses to same-sex couples.

In an order from the Alabama Supreme Court, the court declined to address the issue of whether individual county probate judges should issue marriage licenses to same-sex couples. The court held that the request is an advisory opinion, simply seeking their views on a question with no adversarial proceedings. Those kinds of opinions are only allowed under Alabama law if they are sought by the governor or the legislature.

The request here was made by Mobile County Probate Judge Don Davis, who was seeking guidance on whether Chief Justice Roy Moore’s administrative order or the federal district court order controls.

Chief Justice Moore recused himself in this case.

Tomorrow, in federal district court, same-sex couples in Mobile will ask a federal judge to block Mobile County’s probate judge from enforcing the marriage bans.

Thanks to Equality Case Files for these filings


  • 1. NetAmigo  |  February 11, 2015 at 5:01 pm

    Judge Granade can explain to Davis tomorrow his obligations under the law.

  • 2. 1grod  |  February 11, 2015 at 9:04 pm

    Amigo: Don Davis' effort to drawn in the State Court has failed, with his chief excuse – he was following the directive of the Chief Justice – melted away under a spotlight. Having sought Justice Granada's guidance, what's a guy to do – ignore it. The other truculent probate judges must now realize how very weak is the hand they've been dealt. And guidance from the governor and the AG is: Abide by the law. If Judge Davis has not understood the power of Supremacy Clause before, he will understand its effects tomorrow.

  • 3. guitaristbl  |  February 11, 2015 at 5:29 pm

    The concurrence by Bolin is hilarious !

    "..I place the blame for the confusion that now exists in the various probate courts of this State since the two-week stay expired at the feet of everyone involved, save the attorney general, who has probably requested a stay at all levels, and justices Thomas and Scalia, who offered a solution that would have delayed this matter for only four months or less.."

    I bet this guy has a poster of those two hacks in his bedroom while he has put a photo of RGB on a dart board.

    Anyway, what they essentially say is that they cannot do anything since Bentley or the Alabama religiouslature is not asking. Bentley has said that he has no power over the probate judges so I don't know if he can go to ask for advisory opinion. The religiouslature on the other hand may find an opening to do something here. These judges seem a tad less crazy than Moore anyway (those that wrote opinions at least), which already makes them crazy enough, so they can do anything.

    Moore recusing himself from this order after all the mess he has caused is something I did not expect to be honest.

  • 4. montezuma58  |  February 11, 2015 at 5:58 pm

    The legislature doesn't go into session until March 3. I don't see Bentley calling a special session.

  • 5. VIRick  |  February 11, 2015 at 7:44 pm

    "The legislature doesn't go into session until March 3."

    That's excellent timing.

  • 6. hopalongcassidy  |  February 11, 2015 at 6:25 pm

    Sorry, but that phrase "tad less crazy than Moore" makes my head hurt a lot.
    I just can't help noticing it's a lot like "less dead than Jesus"

  • 7. montezuma58  |  February 11, 2015 at 11:42 pm

    Tom Parker is as much a religious zealot as Moore. He just keeps it low key.

  • 8. VIRick  |  February 11, 2015 at 7:37 pm

    "…. offered a solution that would have delayed this matter for only four months or less."

    At which point, Alabama would still be Alabama, and would still behave in the same manner in which it is currently behaving.

    Thus, postponing the inevitable "for only four months or less" isn't a solution. It's called "kicking the can down the road."

  • 9. Jaesun100  |  February 11, 2015 at 5:31 pm

    They are gonna drag this out until June or beyond if they can..Who knew following federal law was so hard to do even when you've been slapped down by the Supreme Court. I don't know who is worse this man or Kansas Brownstain….Least Bondi knew when to shut up and move on…..

  • 10. Zack12  |  February 11, 2015 at 7:16 pm

    Brownback is far worse, as he is ordering all state agencies to refuse to acknowledge any same sex marriages performed, something Moore doesn't have the power to do.

  • 11. Fortguy  |  February 11, 2015 at 9:40 pm

    On tonight's The Daily Show, Jon Stewart recounted how Brownback just issued an executive order removing LGBT employment protections for state workers. He then implored his audience, since the name alone is seemingly halfway there, to offer up a definition for a new word brownback along the lines of Dan Savage's famous new word santorum.

    Later, he recounted how Alabama voters passed a measure last year disallowing the recognition of foreign legal codes such as sharia which he pointed out would also unintentionally disallow consideration of Biblical law being as the Bible was written in foreign lands. By doing so, he suggested that Alabama was "brownbacking" itself–f***ing itself by its own statutes.

    Come on, Stewart! I'm sure the Internet can come up with a much better definition without even reusing the "frothy mixture" phrase.

    If you haven't seen it, Comedy Central will rerun the episode several times over the next 24 hours, and you can count on Andy Towle and Joe Jervis embedding the video as soon as it's available. Very Funny.

  • 12. davepCA  |  February 11, 2015 at 11:12 pm

    Just saw it – That. Was. Epic. Jon Stewart is my hero! Absolutely brilliant segment.

  • 13. guitaristbl  |  February 11, 2015 at 5:44 pm

    The good thing is given the position they took here, I doubt they will pay much attention to Liberty Council's crazy request. At least I hope so…This is a court that has Moore as chief justice so anything can happen.

  • 14. Sagesse  |  February 11, 2015 at 6:37 pm

    Can someone explain this petition from Liberty Counsel… who is the petitioner "Ex parte STATE ex rel. ALABAMA POLICY INSTITUTE and ALABAMA CITIZENS ACTION PROGRAM", and what's their interest that entitles them to make this petition?

    They appear to be intervenors of some sort?

  • 15. VIRick  |  February 11, 2015 at 7:30 pm

    "They appear to be intervenors of some sort?"

    They are self-appointed wannabe intervenors without standing. The Alabama Supreme Court (with Moore recused) just told the Mobile county probate judge that they only offer advisory opinions to the governor and the legislature. So, if that's their restriction on the issuance of advisory opinions, don't expect them to issue a mandate to anyone,– let alone on a case which is not even before them.

    The self-appointed wannabe intervenors don't even hold a governmental position,– and might not even be bona fide residents of the state of Alabama. Isn't Staver (of Liberty Counsel) a resident of Orlando FL? Or is he passing himself off as counsel for some "front man" or group?

  • 16. Pat_V  |  February 12, 2015 at 1:12 am

    Indeed, I don't understand why they are asking the AL Supreme Court to forbid probate judges from issuing marriage licenses to same-sex couples.
    First of all, obviously their request is silly. But even if we try to see the world from their alternate universe:didn't Moore already do exactly what they are asking? What more could they be demanding? Is it that they want some 'order' coming from the Court as a whole and not just from the Chief Justice? Is it that they want some more 'official' mandate because somehow Moore's order was not binding enough?

  • 17. JayJonson  |  February 12, 2015 at 7:30 am

    It clearly indicates that, for all their pretending that Moore's directive is legal and binding, they know that it is not. Hence, they were trying to bolster its legality by having the entire Court issue a directive. These Liberty people know very little about the law–they were probably advised by Moore.

  • 18. Brad_1  |  February 11, 2015 at 7:29 pm

    It's always fun to see Liberty Counsel step into the room because its name is so ironically twisted.

    Like Alliance Defending Freedom.

    Or NOM.

    Just add "a group opposed to liberty" or "a group opposed to freedom" or "a group opposed to marriage" to figure out their twisted, bigoted, activist agenda.

  • 19. Tony MinasTirith  |  February 11, 2015 at 9:21 pm

    The Governor has pulled the Dog's dentures out. Moore has no powers to enforce his "orders" so he's just a lot of bark with no bite. Hopefully after tomorrow's hearing in Judge Granade's court room, the dog will run under his bench with his tail between his legs. The Court of the Judiciary should go ahead and neuter "judge" Moore and remove him from the bench….AGAIN.

  • 20. jpmassar  |  February 11, 2015 at 10:29 pm

    Italy’s highest court has ruled same-sex couples are not entitled to marriage rights under the country’s constitution. ANSA, an Italian news agency, reported the Court of Cassation in an 18 page decision it released on Monday concluded there is nothing in the Italian Constitution that requires the government to extend marriage rights to same-sex couples. The tribunal nevertheless said gays and lesbians have what ANSA described as “the right to a ‘protective’ law that would ensure same-sex couples have the same rights as unmarried Italian couples.” –

  • 21. Wolf of Raging Fires  |  February 12, 2015 at 12:45 am


  • 22. Christian0811  |  February 12, 2015 at 3:02 am

    What a lazy and bigoted opinion! Art 3 mandates all citizens of Italy be treated equality and Art 29 is gender neutral, the constitution REQUIRES same-sex couples be offered marriage just as opposite-sex couples are. There is no room for alternate interpretation.

    I seriously hope an appeal is made to the Constitutional Court so that this decision might be reversed.

  • 23. Steve84  |  February 12, 2015 at 9:38 am

    There isn't a court in Italy that doesn't defer to the Vatican.

  • 24. Christian0811  |  February 13, 2015 at 1:01 am

    I like to think the Italian Constitutional Court could come to the right conclusion, tar anger things have happened right? Like marriage equality coming to Alabama??

  • 25. RQO  |  February 12, 2015 at 6:45 am

    Not surprising: the Italian legal system is a dark ages mess with a Napoleonic Code whitewash. Remember Amanda Knox?

  • 26. Christian0811  |  February 13, 2015 at 1:01 am

    Vaguely, what about it?

  • 27. 1grod  |  February 12, 2015 at 3:39 am

    Progress has slowed, with 24 counties issuing licenses. These counties' residents represents 45% of the population. With Mobile's wished for inclusion, inclusive counties would represent 54%.

  • 28. F_Young  |  February 12, 2015 at 5:25 am

    Ruth Bader Ginsburg Thinks Americans Are Ready for Gay Marriage.

    Has no plans to retire.

  • 29. RQO  |  February 12, 2015 at 6:54 am

    No plans to retire. 81 years old, just out of the hospital after having overdone it in the gym, nodding off during the State of the Union address, possible changes in Senate confirmation rules, definite change in President in 2 years. Love ya, Ruth, but can we get another ACLU attorney nominated while there's still time?

  • 30. JayJonson  |  February 12, 2015 at 7:33 am

    Huh? It is delusional to think that the Republican-controlled Senate would confirm anyone Obama nominated, especially an ACLU attorney. We must all keep the Notorious RBG in our prayers and work like hell to elect a Democratic President in 2016.

  • 31. jdw_karasu  |  February 12, 2015 at 11:35 am

    She should have retired early last year. If the GOP filibustered a replacement, Reid would have eliminated the filibuster for SCOTUS judges just like other judges.

    Her health is worrisome. It's far from a lock that we'll take the Senate back in 2016, especially given the loss of the Colorado and Iowa (thanks a freaking lot for retiring Harkin!) seats that we had no business losing.

  • 32. Christian0811  |  February 13, 2015 at 1:06 am

    Honestly between the overturning of the Voting Rights Act, gerrymandering, and Citizen's United, I don't have any hope left that the U.S. Congress will ever go back to blue. Unless Congress is literally and forcibly removed in a popular movement, and fat chance of that ever happening, nothing is gonna change. We might win rights as a group (GLBs, maybe Ts) but the political landscape is virtually grossly favouring republicans in my honest opinion.

  • 33. guitaristbl  |  February 12, 2015 at 7:21 am

    Ugh…She should not have done that…It was totally unnecessary and gives the opponents a clear ground to ask for her recusal..
    Good thing she is still determined not to retire. As she said her self, can you think of anyone better who will be confirmed by the current senate ? I can't.

  • 34. Rick55845  |  February 12, 2015 at 7:29 am

    RBG knows what she is doing. Only she can recuse herself. No one can force her to do so. And she hasn't said anything about the cases under review, nor stated how she will rule. She gave a personal opinion only.

  • 35. SoCal_Dave  |  February 12, 2015 at 7:56 am

    Yep, the only one who commented on the current case was…. Thomas,
    predicting a win for Marriage Equality !

  • 36. montezuma58  |  February 12, 2015 at 6:42 am

    J. D. Crowe, political cartoonist for nails it again.

  • 37. Fledge01  |  February 12, 2015 at 6:56 am

    This response by the Alabama Supreme Court makes it very clear what the probate judges should do. What they said was that they can only make opinions on actual controversies before them. Forget the fact that Moore made an order by himself and not as part of the entire court. Moore did not have a controversy before him that would have allowed even the entire court to issue an order to the probate judges. Neither the Governor nor the legislature had asked Moore to address the issue of whether probate judges could ignore a federal judges opinion of constitutional law. Therefore, his order should carry no weight according to this new response by the Alabama Supreme Court

  • 38. wes228  |  February 12, 2015 at 6:58 am

    Granted, his order was not an advisory opinion, which apparently can only be requested by the Governor or the legislature. I am not knowledgeable enough about Alabama state law to say his order was a valid exercise of his powers under state law, but it is not correct to take the Alabama Supreme Court's rejection of an advisory opinion as a rebuff of his order.

  • 39. cpnlsn88  |  February 12, 2015 at 7:08 am

    Possibly, bet they certainly aren't clambering aboard the bandwagon either. For which self restraint one is immensely grateful.

  • 40. Fledge01  |  February 12, 2015 at 7:19 am

    Somebody please talk some sense into me. I heard Moore on CNN talking an he actually said something I agreed with. He said that SCOTUS's opinions do not necessarily determine what the law is. I agree, that SCOTUS just issues opinions of what the law is and sometimes they get it wrong. They never change law in their opinions, they only clarify what they think the law has always been. We just choose to follow them because our government would not operate well if he did not allow SCOTUS to have that authority over us. Also Moore did say if SCOTUS holds that bans on Marriage Equality are unconstitutional, that he would recuse himself from any case that had that issue in it. This is a change in what he has been saying. My hypothetical is that if SCOTUS ruled tomorrow that slavery is legal, should judges resign from their post, only recuse themselves from cases that address slavery, or disregard SCOTUS;s opinion. At least Moore has said he will stop short of ruling against a SCOTUS ruling if they should rule in favor of Marriage Equality. I hate finding good things about bigots, but is it even worth bringing up ideas that he might get right?

  • 41. JayJonson  |  February 12, 2015 at 7:39 am

    Why would you agree with this nonsense? It is crazy. If you don't think SCOTUS determined what the law is when it declared DOMA unconstitutional, then you were not paying attention.

    For more on Moore's craziness, see this exchange with Chris Cuomo on CNN this morning.

  • 42. Fledge01  |  February 12, 2015 at 8:26 am

    Its a fundamental principle of law that courts don't make law. Only the legislature passing laws or the states ratifying or changing a constitution have that authority. SCOTUS didn't make DOMA invalid. They just gave their opinion that it was never law in the first place. It was invalid from the day DOMA was passed (in their opinion) (and my opinion too).

    However, we as citizens, and government agencies, generally acquiesce to what is published in the federal registers as being law. The probate judges and county clerks don't ever have to follow what is written in their registries if they don't think its correct. However, if they don't follow what their legislature passed, and they are wrong about the invalidness of those laws, then they can be found in contempt and even go to jail. That is why they rely on the opinions of a federal judge's opinion, even when they were not listed as a defendant in the pertinent case. It is deemed reasonable to follow the opinion of a federal judge in your state.

    If a probate judge chooses to be a renegade, and chooses not to follow what a federal district judge said, and eventually SCOTUS rules that the renegade probate judge or clerk was correct, then there is no foul because the renegade probate judge would have been found to have always been following the law (regardless of what the federal district judge had ruled at the time) If SOTUS rules that gay marriage bans are ok under the constitution, then it would be correct to say that the marriage equality was never legal in Alabama or other states where federal courts have ruled in favor of marriage equality (even during the time between the district judges ruling and SCOTUS's ruling).

    Now the hard part is that eve IF marriage equality was never legal in these states, we still will have a situation where many couples would have been given marriage licenses in opposition to their state law. Just because those licenses were improperly issued, does not mean those marriages are also invalid. SCOTUS knows this and this is why they let the stays lapse. SCOTUS knows that once a right is granted, even if improperly, there are Supreme Court cases that have said you can't now take those rights away. And, if so many people now have these "improperly" granted rights, the states now have to make those rights available to all.

    This is what happened in Romer v. Evans. The state passed amendment affirming that gay people did not have certain rights. Gay people did not have those certain rights in most of Colorado prior to the amendment being passed. But by passing a state wide amendment where they were singled out a class of people, that singling out made the amendment unconstitutional. Thus giving gay people state wide the rights that the amendment had attempted to prevent.

    SOTUS will rule, that you can't make a ban against marriage equality unless marriage equality would have otherwise been permissible absent the ban (and you have a good reason for the ban which meets the required level of scrutiny). This is because if marriage is inherently between one man and one women, then you don't need a law affirming that. Just the fact that they made that ban, means that the definition of marriage is not defined outside that ban. Thus, the ban is inherently discriminatory, as opposed to the law merely being a clarification of some truth. Discrimination is unconstitutional.

  • 43. JayJonson  |  February 12, 2015 at 8:40 am

    If you really believed this word salad you would not be asking people to talk some sense into you.

  • 44. Fledge01  |  February 12, 2015 at 9:07 am

    That's why lawyers have to endure law school, to be able to realize that law is just a big salad without a recipe. Every attorney can argue any side of any issue. Doing so is required of them. If they couldn't, then our legal system would break down since everybody is entitled to a lawyer who can zealously defend them. You can't zealously defend everybody on every single legal matter if law were anything other than a giant word salad.

  • 45. SimmieK  |  February 12, 2015 at 12:03 pm

    "Its a fundamental principle of law that courts don't make law." – It's not a fundamental principle of law. In fact, the very opposite principle is the origin of the common law system – "common law" referring to laws made by courts, as opposed to "statutory law" which is made by the legislature.

  • 46. Fledge01  |  February 12, 2015 at 12:19 pm

    Common law is created when a court recognizes the way people do things. Those court rulings in common law do not create the law. They just say, "this is how the majority of people behave, so if you want to have predictability in the law then this is the best way." When a court determines whether consideration is needed in a contract they don't just make a ruling out of thin air and then that is law. Rather, what the court does is look to what the general practice in business is and state that in an opinion. What you are talking about isn't the creation of law, but the principle of stare decisis; that we treat what the previous court observed as being the law. The key is "Treat it as law for the sake of predictability, which is good for the economy". But its always up for interpretation by a future court, especially another court at the same or higher level, but sometimes by lower courts too, as in the district courts looking at Baker v. Nelson in the marriage equality cases. It turns out these district courts were right, SCOTUS was wrong about what the law was back when it dismissed the appeal for want of substantial federal question." There was a substantial federal question back in 1972, the courts just didn't recognize it because they were born and raised and lived in a bigoted culture. The law has always been the same though all these years.

  • 47. DeadHead  |  February 12, 2015 at 8:33 am

    Excellent interview, Chris Cuomo ripped Moore to shreds

  • 48. MichaelGrabow  |  February 12, 2015 at 8:41 am

    Everyone needs to watch this, it was brilliant.

  • 49. wes228  |  February 12, 2015 at 7:49 am

    SCOTUS' opinions do determine what the law is, in terms of definitively resolving the question as to how a given law applies in a given situation.

    "It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each." (Marbury v. Madison).

  • 50. Fledge01  |  February 12, 2015 at 8:42 am

    Marbury v. Madison is an opinion of SCOTUS. They only reason the parties acquiesced to what the court said in that case is because they both came out winners. SCOTUS knew in their ruling in Marbury v. Madison that what they ruled was NOT in fact what the law actually was. However, they were smart enough to know that had they not given each side what they wanted, their ruling would not have been followed, and as a result, the power of SCOTUS would have remained small. Marbury v. Madison was a brilliant power grab by the Court.

    If SCOTUS only ruled they way the law actually was, they would not need to compromise and edit their opinions over and over again just in order to get 5 votes. And perhaps none of those that sign on to the majority opinion think that opinion is the law. In fact, all SCOTUS justices have said that many of their rulings are not accurate reflections of what the law is. They only signed on to them to get the case behind them and move on. We live by their opinions for the time being until enough time has passed that we think they might rule a different way and we challenge the exact same issue again in court. We know if we didn't live by their rulings, we would end up in Civil War. Most issues just aren't that important to fight a war over. But that still doesn't mean a ruling by SCOTUS "IS" the law, its just the opinion of the law we agree to follow.

  • 51. wes228  |  February 12, 2015 at 9:32 am

    We are free to have personal disagreements with the Supreme Court, but what they say, in terms of the law, goes. The Constitution says that the federal judiciary is empowered to resolve cases and controversies arising under federal law and the federal Constitution, that there is only one Supreme Court, and that all other federal courts are inferior to it.

  • 52. Fledge01  |  February 12, 2015 at 10:23 am

    The constitution did not give SCOTUS authority to hear Marbury v. Madison, because cases between two separate branches of government are not enumerated in Article III. You only quote part of the first sentence of section two of Article III, not the entire sentence, which enumerates that authority. We accept that it does have authority because President Jefferson won and therefore did not have to ignore the Court's ruling.

  • 53. Flamel4Paris  |  February 12, 2015 at 11:05 am


    The argument at the level of Judge Moore and Alabama is NOT an argument between the US Constitutional Branches of government, so I am not sure about what impact you are trying to make by saying that the Constitution did not give the power to decide as between the branches the meaning of the 'law' to the judicial branch.

    Also, I think you may be misunderstanding the grammatical effect of the enumerations:
    Article III, sec. 2:
    "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects."

    or to put it in a more visually accurate sense:

    Article III, sec. 2:
    The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;

    (The judicial power shall extend) to all cases affecting ambassadors, other public ministers and consuls (implied: whether or not arising under the Constitution, etc);

    (The judicial power shall extend) to all cases of admiralty and maritime jurisdiction (implied: whether or not arising under the Constitution, etc);

    (The judicial power shall extend) to controversies to which the United States shall be a party (implied: whether or not arising under the Constitution, etc);

    (The judicial power shall extend) to controversies between two or more states (implied: whether or not arising under the Constitution, etc);

    (The judicial power shall extend to controversies) between a state and citizens of another state;–between citizens of different states (implied: whether or not arising under the Constitution, etc);

    (The judicial power shall extend to controversies) between citizens of the same state claiming lands under grants of different states (implied: whether or not arising under the Constitution, etc), and

    (The judicial power shall extend to controversies) between between a state, or the citizens thereof, and foreign states, citizens or subjects (implied: whether or not arising under the Constitution, etc).

    It seems to me, that an argument over the interpretation an application of the 14th Amendment as relates to some law, whether via a state's legislative law or a state's constitutional law, is in fact "a case in law and equity arising under this Constitution" and therefor:

    in this instance, SCOTUS does have Constitutional power to make the determination.

  • 54. JayJonson  |  February 12, 2015 at 12:28 pm

    @Fledge01: Well, you might as well sign on to the Scalia fan club. The sort of nonsense that you are spouting is right out of his "originalist" playbook.

    Your comment above that SCOTUS makes no law; that the rights they discover has always been there is exactly the point that Scalia attempted to make in the oral arguments in Hollingsworth, when he asked Ted Olson exactly when the right of gay people to marry dates from. The question was so silly even Olson stumbled in answering it.

    I suppose it is comforting to note that well before Board of Education v. Brown, black children enjoyed the right to go to integrated schools and that long before 1967 the Lovings did not have to worry about getting arrested in Virginia and before 2013 married gay couples had the right to federal benefits. I bet that really made them feel good.

  • 55. Flamel4Paris  |  February 12, 2015 at 8:25 am

    Imho, it would be a much better discussion if we knew what Judge Moore and/or you mean by ‘law”: See a definition from Merriam Webster below:

    1. LAW:
    a (1) : a binding custom or practice of a community : a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority (2) the whole body of such customs, practices, or rules (3) common law

    b (1) : the control brought about by the existence or enforcement of such law (2) : the action of laws considered as a means of redressing wrongs; also :  litigation (3) : the agency of or an agent of established law

    c : a rule or order that it is advisable or obligatory to observe

    d : something compatible with or enforceable by established law

    e : control, authority

    And then to discuss at what ‘level’ you are speaking. For example, SCOTUS, namely the 9 justices, does NOT go out with bats/guns to enforce their rulings. HOWEVER, the opinions of SCOTUS are ‘rules formally recognized as binding’ [at least since Marbury v. Madison] and often those opinions are in fact enforced by a controlling authority (e.g., the Federal Executive Branch acting in Alabama with regard to desegregation; in that sense 'we' follow the opinions of the SCOTUS because they ARE, in effect, THE LAW [and failing to so follow may well end up with the controlling authority enacting punishments upon you). So in that sense, or at that level, SCOTUS does ‘determine’ the law. You almost make it sound as if you believe each individual determines the law (“ we just choose to follow them because otherwise government would not operate well…). Using the standard you, and Judge Moore (I am going from what you stated, as I have not listened to his tirade), set out, there would be no ‘laws’ since it can be argued that the only reason we follow the ‘legislated’ laws is because ‘otherwise government would not operate well’). Hence why I think it is necessary to agree upon what is meant by ‘determine’ law to have a meaningful conversation.

    FINISHING the above discussion regarding level of discussion, stepping back to another level in examining ‘determining law’: the power of SCOTUS to ‘determine what the law is’ comes from a legislative type document, namely the Constitution [granted, as interpreted by SCOTUS, see Marbury above]. And in that sense, then, their ability to determine law comes from the law itself and not from ‘our choosing to follow them…’

    Finally, imho, you give too much credit to Judge Moore’s offer to recuse himself. I think it is nothing more than trying to save face and preserve his ‘theory’ so he can be voted to another office in the grand state of Alabama, bless his and their hearts. 😉

  • 56. Fledge01  |  February 12, 2015 at 9:03 am

    Great points!! I would say law is a custom or order that is advisable to follow because of potential use of force against you if you don't follow it. The executive branch enforces the opinions of the judiciary. I guess the willingness and actual practice of the executive branch to either put us in jail or withhold money form our pay checks is what makes something law or not. The executive branch chose to give the judiciary expanded power in Marbury v. Madison. There was nothing, making them do it. And many legal scholars question whether the constitution actually gives SCOTUS that authority in its text.

    What Moore is saying is that the executive branch shouldn't blindly follow the opinions of SCOTUS. He references the constitution and gives his opinion of what it means. He may be right, but the alternative is something most people would rather not explore. We know there will always be disagreement on how to interpret the constitution and someday it may lead to a real constitutional crisis. But for now, we are nowhere near a constitutional crisis because almost nobody is willing to go against the federal government. The states know that 1) the national guard has more guns than their state troopers, and 2) they benefit more from being in the union that being out of it and 3) they could never be successful succeeding (as history has proven). But Moore's opinion of what the law is may be right on principle, but is wrong in its thinking that his opinion could ever lead his state of Alabama to anything good for the people of Alabama in the long run. Its better to go against your misguided religion and what you think God intends on this one issue than to go against the generally accepted way United States of America practices law. The latter leads to prison. If he thinks he will go to hell for following the standard practice of law (whether its correct or not), then he needs to step down from office.

  • 57. Flamel4Paris  |  February 12, 2015 at 10:40 am


    A few comments:

    1. The executive is charged with executing (hence ‘executive’] /implementing the law-
    – this includes the law set out in legislative enactments AND
    – this includes the law determined via the SCOTUS.

    2. While there may have been some theoretical arguments over the power of the
    equal branch of the judiciary vis-a-vis determining the law at the time
    Marbury v. Madison was decided, imho, only the fringe try to make that
    argument in this day and age for the following two main reasons:

    A) The Congress and Nation, via constitutional amendment, did not do anything to repudiate the finding of law made by SCOTUS in Marbury (which is now over 200 years old) and there is strong merit to the concept of acquiescence and/or at the very least the concept of laches [both concepts then indicating that not only was it the Executive branch that 'gave’ the Judicial Branch the power BUT ALSO it was the Legislative Branch also ‘gave’ such a power]; and

    B) There was a civil war fought over the the right of States, and the citizens of those States, to ‘determine the law’ on a Constitutional level for themselves. THE STATES LOST THAT ‘GRAB AT’ POWER.

    For these reasons, Judge Moore’s stance is on the fringe of practical legal theory.

    I use the word ‘fringe’ above with regard to certain ‘legal scholars’ because I am pretty sure that there are very few legal scholars, percentage-wise, who argue that the Constitution as it currently stands does not ‘give’ the Judiciary the power to determine law. As to ‘reviewing’/‘reassessing’ whether or not the Constitution did or did not give that power to the Judiciary Branch prior to the interpretation given in Marbury v. Madison, that is a legal historian’s playground, but not much more than that.

    Finally, I note in passing that Judge Moore does not have to go against his religion, he only has to either not bring his religion into his job or get another job. Every job has its requirements and in being a judge one of those requirements, at least in this nation, is to try and leave your religious bias at the courtroom doorstep. If he can’t meet the requirements, he should not try to keep the job.

    Personally I think his religion and religious beliefs are just a life-style choice. 😉

  • 58. VIRick  |  February 12, 2015 at 11:40 am

    "…. Judge Moore’s offer to recuse himself. I think it is nothing more than trying to save face and preserve his ‘theory’ so he can be voted to another office in the grand state of Alabama, bless his and their hearts. ;)"

    Flame4Paris, you've just brilliantly summarized the real crux of the issue!!

    Indeed, bless his heart.

  • 59. jdw_karasu  |  February 12, 2015 at 11:37 am

    My thought would be to look up Loving vs VA. Then look at how many states had anti-miscegenation laws on the books when it was issues, and how many of those states were able to enforce those laws after the opinion was issued.

    Of course Judge Moore is in a state impacted by Loving vs VA, so he probably have a good idea of where this is headed and that his state is going to lose.

  • 60. VIRick  |  February 12, 2015 at 12:09 pm

    Remember, this is Alabama, where deja-vu seems to be the standard procedure.

    After "Loving v. Virginia" (1967), it took an additional 3 1/2 years, and a second federal lawsuit, "United States v. Brittain and the State of Alabama" (1970), a case filed and pressed by the full weight of the US Government, before Alabama finally got the message that its anti-miscegenation law was unconstitutional.

    "United States v. Brittain" was initiated by US military authorities and the US Department of Justice on behalf of a US soldier stationed at Ft. McClellan after he and his bride-to-be were denied a marriage license by G. Clyde Brittain, Probate Judge of Calhoun County AL (Anniston). The couple subsequently got married in Tennessee, yet the State of Alabama still refused to recognize the marriage. Thus, the State of Alabama was added to the suit.

  • 61. DeadHead  |  February 12, 2015 at 12:17 pm

    Well let us hope Alabama does not repeat itself again with it's "good ole boy" politicians and Judge Moore gaming the judiciary. I'm willing to bet they have their dreams that there might be a 2016 Republican prez win to stack the US Supreme Court with more right wing hacks.

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