BIRMINGHAM, Ala. (Christian Examiner) – Roy S. Moore, Chief Justice of the Alabama Supreme Court, defended traditional marriage and his instructions to state probate judges not to issue marriage licenses to same-sex couples on CNN Thursday morning. During a heated 25-minute debate, he schooled news anchor Chris Cuomo on state's rights, legislative processes and the right for judges to dissent from federal rulings they consider unconstitutional.
Cuomo invited Judge Moore to be interviewed about his letter, which contradicted a Jan. 23 opinion by District Court Judge Callie V. Granade, who struck down the state's ban on same-sex unions. Moore said she did not have the power to do so.
"What one lone judge in Alabama of the federal court says is not law. If it were law, then the United States Supreme Court wouldn't be meeting to determine this issue in April through June," he said. Moore claims that because the injunction named the attorney general only, it does not apply to him or probate courts.
Cuomo continued to press Moore, comparing him to the opponents of desegregation in the civil rights era and pointing out that the judge was once removed from office in 2003. The news anchor also referred to the U.S. Supreme Court, who has not issued a stay on the matter – a move some feel is indicative that they will change the definition of marriage this summer.
Moore countered, saying that the case is about "sexual preference overcoming an institution which has existed in ... the United States for centuries. And I think it's wrong." He told Cuomo that if same-sex marriage became federal law, he would have the right to dissent.
Though many progressive same-sex marriage advocates have lambasted Moore for defending traditional marriage, the conservative judge has at least one unlikely supporter: the New York Times.
"Roy Moore is right that on its face, Granade's order doesn't require state probate judges all over Alabama — who weren't named in the case Granade heard — to issue marriage licenses. Granade merely instructed Alabama's attorney general not to enforce the state's same-sex-marriage ban," wrote Emily Bazelon for the Times.
"That means a probate judge could go along with her decision, as some have, (and as clerks of the court did in Florida, after a similar district-court decision there went into effect in January). But they don't necessarily have to," she continued.
With the inaction by the U.S. Supreme Court, same-sex marriage is legal now in 37 states plus the nation's capital, largely because of judicial activism, not federal law:
-- 26, including Alabama, have had voter-approved amendments overturned by courts.
-- 13 still only allow marriage between one man and one woman. But among these, seven (Arkansas, Kentucky, Michigan, Misssissippi, Missouri, South Dakota and Texas) have had a judge overturn the ballot measures and appeals are in progress.
-- 8 state legislatures passed laws making same-sex marriages legal (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island and Vermont).
-- Voters in Maine, Maryland and Washington approved measures to legalize gay unions, as did the electorate in the District of Columbia.
Court partisanship has been evident in the multiple federal court rulings that overturned voter approved amendments to define marriage in traditional terms, as well as in the Sixth Circuit decision to uphold traditional marriage in Tennessee, Kentucky, Michigan and Ohio.
This trend of dramatic judicial support for same-sex marriage coincides with changes President Obama has been able to effect in the makeup of the courts.
The New York Times reported Sept. 13, 2014, that for the first time in a decade "judges appointed by Democratic presidents considerably outnumber judges appointed by Republican presidents" and that Democratic appointees who hear full cases "now hold a majority of seats on nine of the 13 United States Courts of Appeals."
To see Moore's defense of traditional marriage from a legal standpoint, click below.