You can either exalt your own religious beliefs over constitutional doctrine or you can be a judge who swears to uphold the Constitution — but you can’t do both at the same time. Which is why the judicial revolt in Alabama over same-sex marriage licenses, led by Roy Moore, the Chief Justice of the Alabama Supreme Court, is one of those rare moments when the whole world can see how truly thin is the fabric binding our benighted rule of law. It all hangs on the uncertain premise, rarely tested, that judges, first among all public officials, will dutifully enforce even those rulings with which they vehemently disagree.
“I do not think I am required to compromise my religious beliefs to be Probate Judge,” declared Marengo County Probate Judge Laurie Hall in a press release last week as the plan to defy the federal courts began to unfold. She was echoing an earlier manifesto by Justice Moore, who likely violated judicial ethics rules last month when he declared that state judges must oppose the “tyranny of the federal government” as expressed by the dozens of court rulings (from judges of both parties) striking down same-sex marriage bans across the county.
Judge Hall has it all wrong. It is axiomatic that state judges (in Alabama and elsewhere) are required to “compromise” their “religious beliefs” when those beliefs conflict with the Constitution. This is such a basic premise of our American rule of law that we barely teach it to law students because we assume they already know it. What does the Establishment Clause of the First Amendment mean if it does not mean that state judges are prohibited from elevating their own religious dogma over constitutional doctrine? But don’t just take my word for it. The “oath of office” for judges in Alabama is simple and obvious. The judge “solemnly” swears or affirms:
that I will support the Constitution of the United States, and the Constitution of the State of Alabama, so long as I continue a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God.
Now, the “Constitution of the United States” may mean something entirely different at the end of June after the United States Supreme Court issues its next same-sex marriage ruling. It may mean (but don’t bet on it) that these probate judges in Alabama will have the constitutional authority to deny same-sex couples the right to wed. But for now, today, the “Constitution of the United States” requires Alabama to issue same-sex marriage licenses. When these judges take this oath they aren’t supposed to be asking God for direction on how to rule against gay couples. They are supposed to be promising God that they will “faithfully and honestly” support the “Constitution of the United States,” including, first and foremost, the federal Constitution.
What we are seeing in Alabama, a judicial mutiny explicitly encouraged Monday by two conservative justices of the Supreme Court itself, is in some ways the flip side of the principle the Supreme Court announced last year in Burwell v. Hobby Lobby. This time instead of a dogmatic private corporation it’s a group of elected judges who are expressing their “sincere Christian beliefs” to avoid yielding to a federal decree. Just imagine the implications of such a “religious exemption for judges” on criminal justice alone if it were to take hold. Judges could refuse to impose the death penalty because their religious beliefs do not condone it or they could hew their rulings to the Old Testament—‘an eye for an eye-” — despite the commands of the Eighth Amendment.
One scholar says the argument Judge Moore and company are making is “wrong” but not “crazy.” Perhaps it is both. No one forced these jurists to take that oath and no one today is forcing them to remain as judges. No one is forcing them to continue to take taxpayer funds so they can ignore federal law to the benefit of some (but not all) of their constituents. Justice Moore and his fellow travelers are perfectly free to hold the beliefs they do and to make stern public pronouncements against same-sex marriage. They are free even to protest such marriages and promise to defy them. They just can’t be judges when they do any of that.
This fight reminds many of the “interposition” battles of the segregation era when state officials openly defied federal court decrees. Only back then politicians like George Wallace were out in front of the state judiciary on the issue and now it’s the state judiciary that seems to be out in front of the politicians. The one branch of government that is supposed to be most objective and unbiased, in other words, today speaks the loudest in Alabama against same-sex marriage. Would it be different if Alabama did not elect its judges? Sadly, we will never know.
Alabama today is a state divided in law based upon the personal and religious beliefs of each county’s probate judge. That’s a big problem. And soon the nation will have a big problem if other lower court judges in other jurisdictions begin to pick and choose which Supreme Court precedents they wish to follow based upon the name of the God to which they pray. These rogue Alabama judges should resign their seats if they won’t obey federal law. And if they don’t resign they should be removed from office. There are plenty of good people in Alabama who still know how to read a court decision and appreciate the value of a federal court order.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.