Self-government, states’ authority at issue as South defies gay mudslide

Christians and defenders of states’ constitutional authority rally Feb. 21, 2015, in Montgomery, Ala. (Photo Sanctity of Marriage Alabama on Facebook)

Christians and defenders of states’ constitutional self-government fly flags at rally Feb. 21, 2015, in Montgomery, Ala. (Photo Sanctity of Marriage Alabama on Facebook)

By John C. Eastman / Witherspoon Institute

Alabama Supreme Court Chief Justice Roy Moore made news last month when he ordered probate judges in Alabama under his judicial supervision not to issue marriage licenses to same-sex couples, even though a federal district judge had held the law defining marriage as a union between a man and a woman to be unconstitutional. Howls of “lawlessness” went up in the corridors of the nation’s elites. Those cries will undoubtedly grow even louder now that the entire Alabama Supreme Court has issued a 7-1 ruling ratifying Chief Justice Moore’s stance.

Our nation’s elites have convinced themselves that a judicial order by a single federal court trial judge, no matter how wrong or contrary to existing precedent, is the “law of the land” and must be followed unquestioningly. Some even compared Chief Justice Moore’s actions to those of the late Governor George Wallace standing defiantly in a schoolhouse door to block implementation of the US Supreme Court’s desegregation decision. The ghost of the late Justice Charles Evans Hughes, who infamously said that “We are under a Constitution, but the Constitution is what the judges say it is,” is undoubtedly smiling.

We have come to expect such claims of unfettered judicial supremacy from the left, but Chief Justice Moore and his fellow justices on the Alabama Supreme Court have by far the better argument.

Our state and federal judicial systems

First, a couple of basic facts. There are two judicial systems in this country, not one. Federal courts exist side by side with state courts, and both have a duty to follow the U.S. 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.

The U.S. Supreme Court has held that “A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” Only the Supreme Court of the United States, which sits at the pinnacle of both judicial systems, can resolve such conflicts.

Second, it is important to note that the federal court order at issue was entered by a single federal trial court judge, who serves on the U.S. District Court for the Southern District of Alabama, one of three federal district courts in Alabama. That court has jurisdiction over only thirteen of Alabama’s sixty-seven counties.

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.

Plaintiffs in the case soon recognized this problem. After the controversy over Chief Justice Moore’s directive erupted, they quickly filed a post-hoc amendment of their complaint to name the Mobile County probate judge. Within twenty-four hours, the federal district judge revised her order to cover that individual as well. Of course, the very fact that plaintiffs needed to make such an amendment was an admission that probate judges were not bound by the prior order. It is also an implied admission that Alabama’s probate judges— including those in the other twelve counties within the Southern District—are even now not bound by the order in litigation to which they are not parties. It’s also a pretty clear admission that this particular federal court judge would have no jurisdiction to extend her order to probate judges in the other fifty-four counties in the state that are outside the boundaries of the Southern District.

Hierarchy and judicial authority

Those are basic issues of federal court jurisdiction, and Chief Justice Moore is absolutely correct in his reliance on them. But there is an even more fundamental issue of precedential authority in our judicial system at stake in this case.

Please read more at Witherspoon Institute

Dr. Eastman is the Henry Salvatori Professor of Law and Community Service, and former Dean at Chapman University’s Dale E. Fowler School of Law. He is founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, and Chairman of the Board of the National Organization for Marriage.