Bench Splinters over Marriage Case

Washington Update by Tony Perkins, Family Research Council

Alabama’s Ten Commandments judge is issuing one of his own: Thou shalt not trample state law. Unlike most people in his profession, Chief Justice Roy Moore actually seems to understand the limitations of the bench. And undermining the expressed will of the people is one of them.

Last week, when another U.S. District Judge junked 697,591 votes on Alabama’s 2006 marriage amendment, Justice Moore had a word for his colleagues: enough! If the courts are ignoring the Constitution that granted their authority, then Judge Moore will ignore the courts! “Be advised,” he wrote to Alabama Governor Robert Bentley (R), “that I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority… As you know, nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage.”

In a refreshing show of defiance, Moore left no doubt where he stood on the issue. “As Chief Justice of the Alabama Supreme Court,” he insisted, “I will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment.”

For Roy Moore, being labeled a judicial maverick is nothing new. The long-time Alabama justice lost his seat (only to be reelected to it by voters) for refusing to tear down the courthouse’s Ten Commandments monument. Now he’s asking his Governor not to tear down 81% of the state, who exercised their constitutional right to preserve the definition of marriage — and an endless slate of other issues under their authority.

Fortunately, Gov. Bentley seems to recognize the threat of these unelected judges — not just to marriage, but to self-governance. “The people of Alabama voted in a constitutional amendment to define marriage as being between man and woman. As Governor, I must uphold the Constitution.” While the Left mocks Moore as some sort of judicial outlier, the reality is, this is how federalism is supposed to work. States are not, and the founders never intended them to be, the federal courts’ lap dog meant to do the lawless bidding of activist judges. At what point did the opinion of a handful of judges start mattering more than the people’s? What happened to self-determination and self-governance?

If we continue to let unelected judges dictate our policy and elevate their own views above voters’, then marriage is just Chapter 1 of the playbook to fundamentally remake society. Libertarians and anyone else foolish enough to think the courts will suddenly embrace their limits after the marriage debate are in for a big surprise. Instead, the courts will start flexing their growing muscle over other laws they were never intended to rewrite — like the First and Second Amendments.

Fortunately for Alabamans (and Americans), Roy Moore is in the judiciary but not of it. Like the great man once imprisoned down the road in Birmingham, the Chief Justice understands, “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny… We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.” For more on Justice Moore’s stand, check out his interview on this afternoon’s radio show!