Late last week, Alabama chief justice Roy Moore said that if the federal Supreme Court grants LGBT couples the right to legally marry across the country when it takes up the case this summer, it would be the final word on the issue. He added, however, that any probate judge in Alabama would be within their rights not to issue marriage licenses to same-sex couples.
Well, Moore doubled down–or more accurately, googoled down–on today’s edition of “Fox News Sunday.” He told host Chris Wallace that under the Tenth Amendment, no court–not even the Supreme Court–can change the definition of marriage. Watch the full interview here:
When I first saw this, I thought that Moore was setting up another showdown with the federal government along the lines of his refusal to obey a federal court order to remove his famous Ten Commandments slab from the Alabama Judicial Building. Moore didn’t quite go there. He did concede that if the Supreme Court ruled in favor of marriage equality, that ruling would control any future case on the matter. However, he said, he “would not be bound thereby.” He claimed that the Supreme Court would be acting outside its authority by “defining words that are not even there” in the Constitution. He cited Justice Benjamin Curtis’ dissent in the Dred Scott decision, in which Curtis famously declared that when individual opinion is allowed to control the meaning of the Constitution rather than the “fixed rules” under which it is to be interpreted, “we have no longer a Constitution.”
As Moore sees it, if the Supreme Court rules in favor of marriage equality, it would be violating the Tenth Amendment–which, he argued, reserves marriage solely to the states and the people. Additionally, he argued that such a ruling would run counter to the “organic law” of this country, which states that marriage is defined by God–and therefore “is not to be redefined by the United States Supreme Court or any other court.” For that reason, Moore said, if such a case came before him, he would have to either recuse himself from the case or dissent.
While it doesn’t look like Moore is digging in for another showdown, it doesn’t make the ground on which he’s treading any less dangerous. How’s that? Well, Moore effectively declared himself a full-on tenther when he claimed that marriage was solely reserved to the states. If that’s true, does that mean that states have the right to ban interracial marriage? The Supreme Court disposed of that question pretty firmly in Loving v. Virginia, which found that such bans at the state level are an egregious violation of the 14th Amendment’s equal protection clause. And yet, if I’m hearing Moore right, the Supreme Court should have punted on this decision since there was no federal issue at play.
If I were Wallace, I’d have pressed Moore pretty hard on this question. It would be pretty interesting to see if his answer would have been any different from that of MassResistance leader Brian Camenker, who actually claimed–presumably with a straight face–that bans on interracial marriage were constitutional. Wallace had a chance to expose tentherism as morally bankrupt–and squandered it.
