Alabama Chief Justice Roy Moore was ousted from his post as the state's chief judge in 2003 after he defied a federal court order to remove a Ten Commandments monument from the state's Supreme Court offices.
Now he has issued an order telling the state's probate judges to defy a federal court order to issue marriage licenses to same-sex couples.
In the first instance, Moore was kicked out of office by the Alabama Court of the Judiciary for directly defying a federal court order. This time, he is using his office to tell others to defy such an order.
That might prove to be a distinction without a difference. Whether it allows Moore to hang onto his office this time remains to be seen. The Southern Poverty Law Center already has filed an ethics complaint against him over this issue.
But at the very least, Moore has created a maelstrom of confusion around the state as to how county probate judges should deal with the issue.
On Monday, some probate judges issued marriage licenses to same-sex couples and performed marriage ceremonies as well. Put Montgomery County Probate Judge Steven Reed and Probate Judge Steven Blair of Coffee County in that category.
Blair released a statement that said he would respect the rulings issued in January by U.S. District Judge Callie Granade.
"While I have the greatest respect for Chief Justice Roy Moore's opinions and beliefs, the question of federal pre-emption of state law is long settled," Blair wrote. " In recognition of my oath as a judge, I am sworn to follow the order of the federal courts with respect to same sex marriages."
Others took applications for marriage licenses from same-sex couples, but said they would wait until the issue was clarified to issue or not issue those licenses. Autauga County Probate Judge Al Booth fell into that group.
Other probate judges chose to hide behind Moore's order and not issue licenses to same-sex couples at all. Put Elmore County Probate John Enslen into that group.
Probate judges in several counties said they would not issue any marriage licenses at all -- to either gay or straight couples -- until they had a chance to clarify the issue.
But such clarity may be some time in coming, and when it comes, don't expect it to come from Gov. Robert Bentley or Attorney General Luther Strange.
In a letter to Bentley, Moore tried to pull the governor into the fray. But Bentley resisted, saying that he has no jurisdiction over the probate judges -- which is true.
Attorney General Luther Strange also tried to avoid the controversy, issuing a statement that read, in part: "With the lifting of the 14-day stay on February 9, 2015, the U.S. District Court order remains in effect, enjoining me from enforcing Alabama's laws against same-sex marriage in my official capacity as Attorney General.
"To clarify my authority in this matter, the Alabama Attorney General's Office does not issue marriage licenses, perform marriage ceremonies, or issue adoption certificates. The Chief Justice has explained in a public memorandum that probate judges do not report to me. I advise probate judges to talk to their attorneys and associations about how to respond to the ruling."
It's all well and good for Strange to refer probate judges to their own attorneys and associations for guidance, but isn't one of the roles of his office to offer legal advice to public officials in state?
The ultimate arbiter of this issue, of course, will be the U.S. Supreme Court. But the nation's high court is not expected to rule definitively on the issue of same-sex marriage until this summer.
Currently, gay marriage is legal in 36 states and also in, according to the federal courts, Alabama. In 26 of those states, it was imposed by the courts. In eight of those states, the issue was decided by the state legislature. And in three of those states, gay marriage was approved by popular vote.
But in Alabama, we have Roy Moore, dragging his heels and saying that he is the final authority on this issue. I have no idea whether Moore truly believes his interpretation of the law -- that he can defy a federal court order on an interpretation of constitutionality -- or whether he is simply creating chaos to put himself in position to run for higher office again. Perhaps it's both.
However, whether it's ego or political gamesmanship, he's putting himself in danger of once again getting kicked out of office.
Ken Hare is a longtime newspaper editor and editorial writer who now writes a regular column for wsfa.com. Email him at firstname.lastname@example.org.
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