This summer, the Supreme Court will again take up the issue of the Constitutionality of state gay marriage bans, having left the question open (why, I don’t know) after striking down the Defense of Marriage Act in 2013. Since that ruling, the states have been busy little bees, some passing laws banning same-sex marriage, some doing the opposite, then fighting out multiple appeals at various levels of the judicial system. Three things are certain: the cultural and legal acceptance of same-sex marriage looks unstoppable; all states need to agree on what a legal marriage is; and some faith-based same-sex marriage opponents will not give in until the last dog dies.
Beginning at the end of last week, a messy situation in Alabama involving all of these factors burst into a full-fledged ethics train wreck. The links in this post will let you immerse yourself in the mess if you choose: I’m going to try to be clear. Here is what has transpired so far:
1) A federal judge, District Court Judge Callie V. Granade, struck down the state’s ban on same-sex marriages in January and said that Alabama could start issuing licenses last week unless the U.S. Supreme Court stepped in and stayed her order. A stay was immediately requested by the Alabama Attorney General, who properly defended the state’s law.
2.) The 11th Circuit Court of Appeals refused to step in and stop her order from going into effect.
3) The U.S. Supreme Court also refused the stay request, allowing marriages to proceed in Alabama.
4) Roy Moore, chief justice of the Alabama Supreme Court, reminded everyone that probate judges report to him, not the federal judge and not the Attorney General, and do not have to issue marriage licenses to gay couples until he tells them to. He told them not to.
5) Some Alabama probate judges followed Moore, and some went ahead and issued the licenses. Mass confusion reigned.
6) Meanwhile, the refusal of the U.S. Supreme Court to issue a stay pending its ruling on state same-sex marriage laws later this year was widely interpreted as tantamount to SCOTUS deciding the case before it was even argued.
7) Justice Clarence Thomas, in a dissent from the majority’s rejection of the stay (we don’t know what the vote break was), argued that “This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our . . . responsibilities.”
8) Justice Ruth Bader Ginsberg, meanwhile, appeared to endorse gay marriage in an interview.
9) Attempting to break the impasse, U.S. District Judge Callie V.S. Granade ordered Mobile County, Alabama to start issuing marriage licenses to same-sex couples, paving the way for resistant officials across the state to follow suit, in a decision stating that the state’s ban on same-sex marriage had been struck down and that Mobile County’s probate judge had to adhere to that decision.
10) Chief Justice Moore remains unmoved, but now most of the probate judges are following the federal order.
Good, now you can explain it to me.
What a mess.
Here are the ethics verdicts on the participants so far:
1. Alabama Chief Justice Roy Moore. As neatly pointed out by New York Times legal reporter Emily Bazelon, Judge Moore has the Alabama Constitution and due process on his side:
“Roy Moore is right …Granade’s order doesn’t require state probate judges all over Alabama — who weren’t named in the case Granade heard — to issue marriage licenses. Granade merely instructed Alabama’s attorney general not to enforce the state’s same-sex-marriage ban. That means a probate judge could go along with her decision, as some have, (and as clerks of the court did in Florida, after a similar district-court decision there went into effect in January). But they don’t necessarily have to.”
Of course, nothing stops Moore from properly using his authority to allow the licenses to be issued, avoiding the train wreck. But that’s not how Moore rolls. In 2003, Alabama’s Court of the Judiciary removed then-Chief Justice Moore from his post because he refused to obey a federal court order requiring his removal of a statue of the Ten Commandments from the State Judicial Building. The voters of Alabama promptly elected him again. Once again, as he has made clear, a bias in favor of religious doctrine is guiding his decisions, making his conduct an example of an arguably ethical act (making a principled stand in favor of following process) being done for unethical reasons. A judge, as an agent of the state, should not impose his religious beliefs on others.
His actions in support of his stand are clearly a violation of judicial ethics, as the ethics complaint filed by the Southern Poverty Law Center correctly asserts. Judges are prohibited by their ethics rules, in Alabama and elsewhere. The Alabama Canons state, “A judge should abstain from public comment about a pending or impending proceeding in any court . . . .” Moore has been all over the media, including a long and contentious debate on CNN with Chris Cuomo.
2. The News Media. With the notable exception of Bazelon, the media reporting on this episode has been biased and slanted, as virtually all mainstream media coverage of the gay marriage issue has been for at least a decade. (Pssst! They’re for it!) It doesn’t help, admittedly, that Moore is a certifiable, off-the-charts fanatic, but never mind: the public should be informed. For example, Mediaite writes about “…Moore’s order that Alabama probate judges ignore the Supreme Court and refuse to issue marriage licenses to same-sex couples.” Incompetent and wrong. The Supreme Court did not order Alabama judges to issue marriage licenses to same sex couples. It refused to stay the order by a district court judge who probably didn’t have authority to to force probate judges to do so. The distinction is important, but to the media, pro-gay marriage good, not pro-gay marriage bad, and anyway, who cares about this due process stuff? Just like President Obama…
Into the breach charged CNN’s resident know-it-all, Chris Cuomo. You know, if you are going to debate someone like Judge Moore, who is obsessed but not stupid, you had better do your homework. Cuomo, like so many newsroom “stars,’ thinks he can prevail on charisma, passion and being “right” alone, without a shred of legal knowledge or ethics acumen. He debated Moore for 25 minutes, and accomplished nothing other than making it clear to his fans that he was a gay marriage supporter. Here are some examples:
CUOMO: First, this appeal for a stay went all the way to the Supreme Court. The stay was denied. That is the Supreme Court saying follow the district court order which is what is telling your state to allow the marriages. And as you know, the history of your state very well, better than I, district courts are often the tool for change, let’s say with segregation. If your state hadn’t followed those district court orders, you may still be in a different position legally. Your response?
MOORE: Well, what you’re saying is the injunction was not lifted, it remains in effect, and that injunction applied only to the attorney general of the state, no to the probate courts of Alabama. Indeed, that’s the difficulty in this camp by the federal court to control the state of Alabama and its federal intrusion into state sovereignty. Even she admitted after that fact that she had no right, no power, no authority to intrude into the probate court of Mobile County and Probate Court Judge John Davis.
Moore was right. Cuomo was wrong.
CUOMO: The definition of marriage was agreed 81-19 in your state in the passing of the constitutional amendment. Times have changed, as they did with slavery, and the population no longer feels the same way. And even in your state people no longer feel the same way. You are clinging to a definition that you believe is divine. You said it in your letter to the governor.
CUOMO: But you know that divine basis —
MOORE: No, you’re incorrect….Eighty-one percent as recently as 2006 said it was the definition. They haven’t changed their opinion. The only thing that’s changed is one federal judge has come in and tried to force upon this state something which she cannot do. Her opinion is not law and that should be made very clear. The law, according to the United States Supreme Court and the federal district courts is an opinion of a federal judge cannot — cannot mandate to state courts how they should judge under the law. That’s the law in every state. It’s the law in the United States. Justice Thomas said that in 1996.
CUOMO: But it’s happened many times and the Supreme Court had an opportunity to stay this district court’s opinion, which they very well could have done, and they did not, reinforcing the effect of that.
MOORE: Staying opinions — staying a temporary injunction, which applied only to the Attorney General, is not a ruling on the law, sir. Very clearly.
Again, Cuomo is wrong, and Moore is correct. Indeed, Cuomo is ridiculous: he is arguing that a poll showing that attitudes toward same-sex marriage in the state has or should have a bearing on the enforcement of the law. Meanwhile, district court judges can’t dictate Alabama law.
CUOMO: But it’s about discrimination. In 2006, you created a constitutional amendment that, by design, discriminated against gay people. And now you are being told by the federal law that is wrong.
MOORE: Again — again — again, that is a constitutional amendment to the Alabama constitution, and it’s clearly within the bounds of state law and federal law. Again, there is nothing in the constitution about marriage. How can judges go in and define a word? They’re doing exactly what they did in 1857 in Dred Scott.-
CUOMO: They just did it in U.S. v. Windsor. They just looked at the Defense of Marriage Act and said you cannot define marriage as just between a man and woman.
MOORE: That was between Congress. It did not affect the state, according to the ruling in Windsor.
Cuomo walked right into that one, and there’s no excuse for it. The Court in that case specifically said that it did NOT apply to the states.
MOORE: Chris, let me ask you something — let me ask you this, Chris….Would you follow the — would you have followed the order in Dred Scott saying that black people were property? Or would you have followed the order in Plessy versus Ferguson that says separate but equal was the policy of the United States? Can you answer that please?
CUOMO: Your job as Chief Justice is to administer the law.
MOORE: You didn’t answer the law. You didn’t answer it, Chris.
CUOMO: I am not the Chief Justice of Alabama. It’s not my place to answer.
MOORE: Well, I’m asking you if you were the Chief Justice of Alabama, would you follow Plessy versus Ferguson and Dred Scott when they were issued. Yes or no?
CUOMO: You follow the law of the land. That is what our nation is based on.
MOORE: You can’t answer it, can you, Chris?
CUOMO: Here’s why. You cannot duck your responsibilities by putting them on me, Your Honor. They didn’t elect me to be Chief Justice.
Translation: Cuomo: Duhhhh….
The bogus Dred Scott question has been a favorite among the anti-gay marriage crowd of late. It is designed to place defenders of gay marriage in a bind by the use of a terrible analogy. Again, Moore is right that Dred Scott was constitutionally indefensible (especially given the clear meaning of the language in the Declaration of Independence), but he’s absurdly wrong that the right to marry and the states’ rights to define marriage in such a way that it precludes participation by some citizens is an analogous issue. Moreover, the very question is an exercise in time travel, hindsight bias, and “presentism.” I’d be willing to bet that Alabaman Moore, were he a judge in 1857, would have been applauding the Dred Scott decision, not resisting it. Would Cuomo–or Moore— defy the Dred Scott decision today? Well, sure, especially since it now also violates the 13th Amendment, would put the President up for auction, and Dred Scott has been dead since 1858.
How could Cuomo not have seen this question coming, and had a competent reply ready? Here’s one:
“As Chief Justice, my options would be to uphold the law as defined by the Supreme Court and advocated changing it, to resign because I could not in good conscience continue to enforce a law I felt was unjust and unconstitutional, or engage in civil disobedience, defy the law, and risk going to jail. If the case involved treating human beings as chattel, I would probably choose the third option. But allowing same sex couples the right to form legally recognized, socially sanctioned bonds of love and commitment without being denigrated or held apart from the rest of society is a societal good, not an evil like slavery, so your comparison is inapt.”
Verdict: The news media has been largely incompetent, lazy and biased.
3. The Supreme Court. Justice Thomas, and Scalia, who joined his dissent, are right. The Court should not essentially its ruling before the case has been argued, no matter how much of a foregone conclusion it may be (and to be fair, it’s been hard to see how SCOTUS would not strike down the anti-gay marriage laws since the DOMA decision.) The ethical argument on the other side is: “Let’s be realistic. We know how this will come out: why hang all these poor couples out for another 120 days or more when we know they’re going to be able to marry anyway?” That’s unprofessional, and the Supreme Court has to be better than that. If, however, the Court refused the stay and there is any appreciable chance that gay marriage will not be upheld, the decision is cruel and irresponsible.
Verdict: Any way you look at it, this was unethical.
4. Justice Ruth Bader Ginsberg. The 81-year old Justice has obviously entered the “what the hell, I can do and say what I want” stage in her career, most recently highlighted by her admission that she was smashed during the State of the Union. In an interview with Bloomberg, she signaled her support for gay marriage, saying,
“The change in people’s attitudes on that issue has been enormous. In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor — we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”
If she were an Alabama judge, she would be as guilty of an ethics violation as Moore is. True, the Supreme Court has no ethics code, but that doesn’t make unethical conduct any less so. Other Justices, notably Scalia, have done this in the past. It’s unethical to comment on a pending case, and for Supreme Court Justice to do it is the most unethical of all. While she was at it (“Oh, what the hell…”), Ginsberg also let us know that she will be voting for the Affordable Care Act when that case comes up, saying of her pal, the President:
“Our country was just about the only Western industrialized country that didn’t have universal health care for all of the people, and he made the first giant step in that direction. That’s certainly one of the things he will be remembered for.”
Because we all know that what the other Western industrialized countries do and believe must be best.