Are Roy Moore’s Actions Illegal as Well as Immoral?

February 11, 2015

Judge Roy Moore, Chief Justice of the Alabama Supreme Court, on Sunday ordered Alabama state judges not to issue licenses to same sex couples in that state. Moore did not simply express disapproval for the federal ruling that mandates marriage equality in Alabama. He did not suggest that Alabama probate judges follow the dictates of their own consciences in deciding whether to issue such licenses. He ordered those judges not to issue them, under threat of sanction by the Governor (though today Governor Bentley announced he would not sanction judges who followed the federal constitution and issued licenses to same sex couples).

Moore is no stranger to bizarre interpretations of the constitution. His desire to impose a theocracy is well known. In 2003, Moore was removed from office for his refusal to obey the instruction of a federal court to remove a massive Ten Commandments monument from the Alabama Judicial Building, which had been found to violate the Establishment Clause. This, however, did not prevent his reelection to the bench in 2012.

What Moore has done here is, without a doubt, callous and malicious. But, to those of us in the legal profession, it is more than that. It is a violation of the utmost duty of an officer of the court – to uphold the law. Moore’s claim is based solely in an outdated notion of nullification – that states possess the right to ignore federal law if they view it as contrary to their constitutions. The Supreme Court has repeatedly denied that such a right exists. The Constitution of the United States, as interpreted by the Federal Court system, is the supreme law of the land. Alabama has challenged such supremacy before, and has lost its challenge each time, including a four year battle that caused the deaths of over 600,000 Americans.

By denying the validity of the federal court ruling, and calling for open opposition to the supremacy of the United States Constitution, Moore has disgraced his judicial robes, and the Alabama Bar. At the very least, he should be removed from office and disbarred for bringing the entire legal profession into contempt. But disbarment may be the least of Moore’s worries. Title 18 of the United States Code, Section 2383 deals with “ Rebellion or Insurrection,” and states:

Whoever incites, sets on foot, assists or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both.

Assuming insurrection encompasses resistance against lawful civil authority, Moore may have broken this federal law. He has ordered the state judges under his authority to disobey a clear ruling from a federal court. He (and every probate judge who follows his order and denies marriage licenses to qualified couples) may be engaging in insurrection against the authority of the United States. If so, he should be arrested, charged, and tried.

It’s unlikely Moore will be removed from office or disbarred, much less prosecuted. But what he is doing is not only unconscionable, it may be illegal. Moore stands on the wrong side of history, both in his opposition to marriage equality, and in his outdated mantra of “states’ rights.”

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