What “rule of law” answers these fundamental questions? Judge Granade has now set herself up to be the chief probate officer in the state of Alabama. She has not defined marriage, and her failure to do so leaves state actors, especially probate judges, without a definition of the institution for which they are issuing state licenses. Worse, she has provided no legal standards—not even a limiting principle—to guide her administration of Alabama family law, which she has now taken upon herself.

As I have heard Judge Hand say time after time after time, this is a nation of laws and not of men, and the rule of law is prime in our system of jurisprudence. That is what makes stare decisis such an important factor in how any judge goes about the business of being a judge. I think that as long as judges follow the rule of law and do not become a law unto themselves, they will make a fine judge, and that is what I intend to do should I be so fortunate as to be confirmed.

Testimony of Judge Callie S. Granade before the Senate Judiciary Committee prior to her confirmation.

The “least dangerous” branch of the federal government and the Alabama judiciary are at war. Ordinarily, judicial federalism is a subject of interest to a few legal scholars, political philosophers, and historians. Now it is on the mind of average citizens as they are observing the dangerous battle between the federal courts and the Alabama judiciary. Every citizen should mourn the fact that this battle has wounded, perhaps fatally, the rule of law in Alabama.

Just over two weeks ago, Judge Callie S. Granade, a federal district judge in Mobile, struck down Alabama’s marriage laws as unconstitutional, holding that Alabama had no rational basis for preventing the plaintiffs (two women) from marrying. The Eleventh Circuit and the Supreme Court both denied a stay (over the dissent of Justice Thomas and Justice Scalia). On Monday, a self-imposed stay expired and same-sex couples began appearing in probate offices to file applications for marriage licenses.

Chief Justice Roy Moore of the Alabama Supreme Court responded to the federal injunction by publicly advising Governor Robert Bentley that the judge’s order was not binding in Alabama. Chief Justice Moore issued an order, in his capacity as the chief administrative officer of the Alabama courts, prohibiting probate judges from issuing licenses in contravention of Alabama’s marriage laws. Chief Justice Moore asserts that an inferior federal court ruling is persuasive authority, not binding authority, in any state. In effect, Chief Justice Moore has ordered all state probate judges to disregard the federal court’s injunction and adhere to Alabama’s constitution and laws and has threatened sanctions for those judges who disregard his order.

So what should a probate judge do? What are a probate judge’s legal obligations?

Alabama’s Attorney General, Luther Strange, has instructed probate judges toconsult a lawyer regarding their obligations. Some probate judges are complying with Chief Justice Moore’s order, and motions for contempt proceedings in the federal court have already been filed. Meanwhile, other Alabama probate judges are ignoring Chief Justice Moore’s order and issuing licenses to same-sex couples. Some are making up their own application forms as they go.

Supporters of “marriage equality” are celebrating the federal ruling while wielding the sword of federal supremacy. In their unfolding civil rights narrative, Chief Justice Moore is rather predictably playing the part of the southern obstructionist. There he stands in the courthouse door. Judge Granade’s decision to enter her injunction (just two months before the questions before her are argued in the Supreme Court) was a declaration of war. Given Chief Justice Moore’s prior battles with the federal courts, it is unsurprising that he dared to defend Alabama’s constitutional authority.

Unfortunately, all sides appear not to notice that as they battle they are killing the very thing that they are fighting over. The rule of law is suffering injuries in this tired old battle between individual rights and states’ constitutional authority.

The Wounded Rule of Law

The wounds to the rule of law are, perhaps, easiest to perceive with respect to the strategy selected by Chief Justice Moore. Many, including Professor Ronald J. Krotoszynski of the University of Alabama School of Law, have criticized his constitutional reasoning. Although Moore’s arguments are supported by a considerable constitutional history (for example, state supreme courts ignored the mandate of the United States supreme court dozens of times prior to the Civil War), his defiance of federal judicial power in a state known for such defiance is the wrong strategy.

His statements create the appearance that he denies the supremacy of federal law. Appealing to the Tenth Amendment without acknowledging the Supremacy Clause (and developments occurring since the Civil War amendments) should trouble anyone concerned about the stable rule of constitutional law. Indeed, Justice Thomas and Justice Scalia noted, in their dissent from the denial of a stay in the Alabama marriage case, the obligation of the states to comply with a federal court’s order. Chief Justice Moore’s position is exposing the state’s judiciary and the rule of law to considerable scrutiny.

But it must be observed that Justice Moore did not declare war. The first shot was fired from the federal courthouse in Mobile. The constitutional crisis now unfolding in Alabama is a direct and foreseeable result of Judge Granade’s orders. And a closer examination of her orders reveals that it is the federal court, not Chief Justice Moore, creating the constitutional crisis now undermining the rule of law in Alabama.

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