Roy Moore case: Was SSM order defiance or guidance?

Prosecutors and defense attorneys agreed on this Monday afternoon: They don’t need a trial to determine whether Alabama Chief Justice Roy Moore should stand trial on ethics charges.

That was the only point of overlap in an hour-long hearing over whether the court should remove the chief justice from office over a Jan. 6 order that told probate judges not to issue marriage licenses to same-sex couples. That order came despite the U.S. Supreme Court’s ruling striking down such bans in Obergefell v. Hodges six months earlier.

Mat Staver, a Florida-based attorney representing Moore, told the Court of the Judiciary that the order aimed to guide probate judges on a pending court matter, and tell them that the Alabama Supreme Court had yet to rule on a challenge to same-sex marriage, brought after a federal judge struck down the state bans in January 2015.

“Nothing had been done,” Staver told the panel. “The probate judges were wondering, ‘What do we do?’”

The Judicial Inquiry Commission, which said the order violated the state's Canons of Judicial Conduct, said Moore should follow federal rulings. John Carroll, a Cumberland School of Law professor and retired federal judge representing the JIC, said that Moore, an outspoken social conservative, had for months signaled his opposition to federal law through letters to Gov. Robert Bentley, the state’s probate judges and memos to fellow justices in which he paraphrased “First they came for” by Martin Niemöller, a German pastor who opposed the Nazis.

“We can’t allow this chief justice to pretend away any of these charges,” Carroll told the court. “All his actions leading to his Jan. 6 order ... all of these show from the (January) day he first sent a letter to the governor he was on a mission not to recognize federal law on same-sex couples.”

The Court of the Judiciary did not issue a ruling after the hearing, but denied summary judgment in an order late Monday. Moore will go to trial on his ethics charges Sept. 28.

‘It was their decision’

Speaking outside the court to a crowd of supporters after the hearing, Moore repeated arguments made in many briefs over the past year that a March 2015 Alabama Supreme Court order that stopped same-sex marriage remained in effect at the time of the January order, regardless of the U.S. Supreme Court ruling. The state court at the time was considering a lawsuit against same-sex marriage brought by the Alabama Policy Institute (API) and the Alabama Citizens Action Program (ALCAP), despite an 11th U.S. Circuit Court of Appeals order last year abrogating the case.

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“It’s the objective of my Jan. 6 order to get the Supreme Court to rule on this case,” Moore said in his first public statement since his suspension on May 6. “It was their decision. I said, ‘I can’t give any guidance to the probate judges on this matter. I’m not at liberty to do that.’”

Moore’s four-page order said he could not give guidance on the issue, which Staver stressed in his presentation, insisting he was not trying to make law but provide updates on the API case.

“You cannot read, you cannot construe, you cannot misunderstand ... that anywhere in that four-page order the chief justice changed the status quo or told probate judges to disobey the U.S. Supreme Court,” Staver said.

Moore made it more direct following the hearing.

“There is no evidence we violated the law,” he said. “It is a legal order,” adding later that "it wasn't about how I feel."

Carroll, speaking to the court, said the case was not about an individual’s feelings about same-sex marriage but Moore’s “repeated refusal to follow the rule of law,” citing the current case and Moore’s refusal in 2003 to obey a federal order to remove a Ten Commandments monument from the Heflin-Torbert Judicial Building, where the state’s appellate courts meet. The refusal led to Moore’s removal from the bench.

Carroll noted that Moore at first recused himself from the API case, but later rejoined it to pen an angry critique of the Obergefell decision in March.

“He got back in the case because his view is a state law trumps a federal law; probate judges were not following state law and they had to be ordered to do so,” he said.

Carroll also noted Moore’s paraphrase ofNiemöller’s statement in the memos to the justices, saying “he’s essentially accusing federal judges enforcing same-sex marriage laws of being like the Nazis in Germany.” Staver called that “offensive” and said it was not what the chief justice was saying.

Supporters and protesters

A crowd of about 100 people came out in support of Moore. While the chief justice and his attorneys argued the Jan. 6 order did not order disobedience of the U.S. Supreme Court, many said they saw Moore standing up for traditional marriage.

“I don’t believe any court can make any laws,” said Jeremiah Campana, a landscaper who traveled from Florida to attend the rally. “I believe it’s up to the state to decide to make laws.”

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Tim Yarbrough, an energy consultant from Moulton, said that he considered the U.S. Supreme Court a political, unstable body.

“As a nation, we’ve gone to a place where ethics have gone to a totally relativistic system,” he said. “No nation has survived that. Never has, never will.”

The rally also presented a jarring mix of lilting Christian hymns fighting the sounds of Moore supporters heckling and in some cases screaming at a smaller group from the Human Rights Campaign of Alabama, which gathered to urge Moore’s removal. Some yelled at the protesters that homosexuality was "vile" and many attempted to interrupt them when they spoke with members of the media.

"You're not going to have a lesbian judge to protect you when you die," yelled Ken Scott of Denver.

Ambrosia Starling, who Moore singled out for criticism after his suspension, said Monday there was “no greater sin” than “putting bigotry in God’s mouth.”

Starling, like other protesters, said Moore’s presence on the high court meant LGBTQ people would not get a fair hearing in court.

“Regardless of whether you’re black, white, pink or blue, it doesn’t matter,” she said. “We’re all entitled to equal protection under the law.”

Paul Hard, an Auburn Montgomery professor who struggled for years to win legal recognition as his husband’s widower, said Moore’s orders affected him personally.

“He should be removed from office because he simply cannot abide by federal law,” Hard said, amid heckling from some Moore supporters. Neither Moore nor other speakers experienced heckling when they spoke.

Richard Cohen, president of the Southern Poverty Law Center, which brought many complaints against Moore, said the chief justice’s removal was the only option.

“He has absolutely told 68 probate judges to violate a federal court order,” he said after the hearing. “Now he’s trying to save his skin by playing word games. It’s unseemly and it’s dishonest.”

Carroll said he took “no joy” in recommending Moore’s removal. Carroll, however, said former chief justices like Howell Heflin or Bo Torbert would have opposed same-sex marriage, “but not one of them would have done what this chief justice did.” Moore afterward said the JIC would have to face the fact that “they take great joy in this.”