Southern Baptist ethicist says Alabama judges must uphold gay marriage law or resign

by Will Hall, |
Alabama Chief Justice Roy Moore (left) and Russell Moore (right), president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention. | FILE photos

NASHVILLE, Tenn. (Christian Examiner) -- The head of the Southern Baptist Convention's public policy arm says Alabama judges who in good conscience cannot issue marriage licenses to same-sex couples, should resign instead of fighting the law while in office.

Russell D. Moore, president of the Southern Baptist Convention's Ethics & Religious Liberty Commission and no relation to Alabama Chief Justice Roy Moore, was quoted in the Baptist Press, the SBC's official news service, as being in conflict with approximately 44 of 67 Alabama probate judges who have refused to issue marriage licenses to gay couples. These jurists are acting in defiance of an order by U.S. District Court Judge Callie Granade who invalidated an Alabama constitutional amendment, passed by 81 percent of voters, defining marriage in the state as only between one man and one woman.

On principle I did the right thing. But it's not about the Ten Commandments, and it's not about my feelings, it's about the law. And my law, Alabama law, states that I'm the chief administrative officer of the judicial system and I must act when the jurisdiction of the probate court is interfered with by one lone judge who has no power or authority to tell them how to interpret the federal Constitution.

The issue arose in large part because Judge Roy Moore issued guidance to state judges Sunday night, Feb. 8, ahead of the expiration of a 14-day stay blocking same-sex marriage in Alabama.

Citing the Alabama Constitution as appointing him, as Chief Justice of the Alabama Supreme Court, the administrative head of the state judicial system, he quoted Alabama law authorizing him to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state."

He then ordered "no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent" with the Alabama Constitution of state law.


Russell Moore, a national official charged with representing Southern Baptists' beliefs with regard to culture and public policy, told Baptist Press any judge who "could not discharge the duties of his office required by law" because of objections of conscience "would need to resign and protest it as a citizen."

He said that there is a role for civil disobedience, but not for "judges and state Supreme Court justices ... in their roles as agents of the state."

Russell Moore's dissent with some Alabama judges was published the same day Judge Roy Moore, also a Southern Baptist, said just the opposite in a heated debate with CNN's Chris Cuomo.


Cuomo, son of liberal icon Mario Cuomo, recently deceased former New York governor, argued Alabama Chief Justice Moore "did not have to do this" and accused the judge of "acting on principle" instead of the rule of law in this instance as he did in another case in which Moore fought a federal judge's order and kept a stone monument of the Ten Commandments in the Alabama judicial building -- an action which led to his removal from office.

Cuomo raised the specter of segregation "in states like yours" which district courts ended by making rulings states had to follow.

But Roy Moore retorted that the issue is not discrimination but "about sexual preference overcoming an institution which has existed in our state—in our United States—for centuries. And I think it's wrong."

Cuomo asked Judge Moore what he would do if the Supreme Court decided in favor of same-sex marriage.

The judge rejoined Cuomo by asking him if he would have followed the order in Dred Scott "that said black people are property" and Plessy vs. Ferguson "which said that separate but equal is the policy of the United States."

"Can you answer that please?" he asked.

Cuomo dodged the question.


Russell Moore cited familiar biblical passages to justify his position that Chief Justice Roy Moore and the defiant probate judges are wrong.

"As citizens and as Christians, our response should be one of both conviction and of respect for the rule of law (1 Peter 2:13; Romans 13). Our system of government does not allow a state to defy the law of the land," Russell Moore wrote, according to Baptist Press.

"Religious freedom and conscience objections must be balanced with a state's obligation to discharge the law," the Southern Baptists' ethicist said.


But the New York Times' Emily Bazelon agreed with Chief Justice Roy Moore about the "process" of the law in this case, calling it "peculiar."

"District-court rulings, even if they're about important matters of policy, usually affect only the people involved in the case in question," she wrote. "They don't typically make law for an entire state; that responsibility falls to a state's highest court, or a federal appeals court -- in this case the U.S. Court of Appeals for the 11th Circuit -- or eventually the Supreme Court, which makes law for the country."

"But in the case of Granade's ruling on the gay-marriage ban, both the federal appeals court and the Supreme Court have stood aside," the NYT article continued, "leaving Granade in the highly unusual position of remaking law and policy for the entire state of Alabama."

"[Judge] Moore is telling state judges not to follow Granade's order. To contest the statewide application of her ruling is a far more legitimate form of fist-shaking by a state official than contesting an order from a higher federal court would be," Bazelon concluded.


Others have a different take than Russell Moore on the biblical responsibilities of Christian judges facing objections of conscience.

Southern Baptist Rick Burgess, an overwhelmingly popular Christian radio personality throughout the South and an Alabama native, sent a strongly worded tweet to encourage probate judges who "claim to follow Christ" to "make a stand and refuse to sign same-sex marriage licenses."

He followed up his social media message with a statement to that he felt Christian judges are "in a Daniel moment."

"Daniel followed the law of the land until it asked him to go against God and the Bible tells us that Daniel had resolved in his heart that he would not worship the king, even though it was the law," he said. "If you are a Christian and a probate judge do you condone a version of marriage that goes against God even though it's the current law of the land? Martin Luther King Jr. in his letter from a Birmingham jail covered this when explaining to fellow pastors why he would continue to break 'unjust' laws."

He added that Christians had an equal right to raise their families in a society reflecting their convictions.

"It's time to fight," he said.


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