Alabama justice defends his gay marriage ban memo

Kim Chandler
Associated Press

Montgomery, Ala. — Suspended Alabama Chief Justice Roy Moore has formally defended the gay marriage memo that put his judicial career in peril, saying he was merely trying to answer questions from probate judges that his fellow justices would not address.

Moore could be removed from office if the state’s Court of the Judiciary decides he violated judicial ethics by urging probate judges to defy the U.S. Supreme Court on gay marriage.

The ethics complaint stems from a January memo he sent probate judges saying an Alabama Supreme Court injunction against same-sex marriage remained in “full force and effect” despite a federal judge’s order to comply with the U.S. Supreme Court’s Obergefell decision, which effectively legalized gay marriage six months earlier.

Moore’s filing Tuesday says he never told probate judges what to do and was only informing them that the state injunction had not been lifted.

The Judicial Inquiry Commission “has tried to write a story that does not exist,” Moore’s attorney Mat Staver said Wednesday. “Moore never ordered the probate judges to disregard the U.S. Supreme Court’s marriage opinion, but that is the slanderous narrative of the JIC. The JIC has no case and never should have filed the baseless charge,” Staver’s statement said.

The Court of the Judiciary, a panel that hears misconduct accusations against judges, will hear arguments Aug. 8 on Moore’s request to have the ethics charges dismissed.

The Alabama Supreme Court had ordered probate judges in March 2015 to stop issuing marriage licenses to gay couples, and did not address this injunction for months after the U.S. Supreme Court legalized gay marriage on June 26, 2015.

Moore submitted an affidavit Tuesday saying he sent his memo to address “confusion” among probate judges because of the court’s delay. He also released excerpts from his unsuccessful efforts to persuade his court to decide how to react to the high court’s ruling. He twice sent memos urging fellow justices to take some sort of action.

“I believe it is time for us to make a decision in this case, one way or the other: to acquiesce in Obergefell and retreat from our March orders or to reject Obergefell and maintain our orders in place,” Moore wrote his fellow justices in September 2015. He said it would be “very unfair” to leave “probate judges of this state to bear the stress of this battle alone with no guidance from us.”

Post-Obergefell, most probate judges in Alabama were already issuing marriage licenses to gay couples at the time of Moore’s order, and continued to do so afterward. A few counties had shut down marriage license operations altogether to avoid giving licenses to gays and lesbians.

The commission wrote earlier this month that Moore was playing “semantic gamesmanship to try to convince this court that he never counseled defiance.”

Moore was ousted as chief justice once before, in 2003, for refusing to remove a boulder-sized Ten Commandments monument from the state judicial building, but was later re-elected.

This time, the Judicial Inquiry Commission told the Court of the Judiciary that because of Moore’s record of defying the courts, there’s no need for a trial before removing him again.

“Because the chief justice has proven — and promised — that he will not change his behavior, he has left this Court with no choice but to remove him from office to preserve the integrity, independence and impartiality of Alabama’s judiciary and the citizens who depend on it for justice,” lawyers for the commission wrote.