MONTGOMERY, Ala. — In response to a motion to have the charges against Chief Justice Roy Moore dismissed, the Alabama Judicial Inquiry Commission (JIC) rather asserted on Friday that Moore should be removed from office over contested assertions that he illegally prohibited probate judges from issuing marriage licenses to homosexuals.
“This court (COJ) can conclude this matter now, deny the Chief Justice’s motion for summary judgment, enter judgment as a matter of law in favor of the commission (JIC), remove the Chief Justice from judicial office, and reaffirm Alabama’s fidelity to the rule of law,” it wrote in legal briefs.
As previously reported, Moore was suspended from the bench in May after the homosexual advocacy groups Southern Poverty Law Center, People for the American Way, the Human Rights Campaign, and a drag queen who goes by the name Ambrosia Starling, pressed the JIC to take action against Moore.
The situation began in 2013 when two lesbians in the state sued Gov. Robert Bentley, Attorney General Luther Strange and Mobile County Probate Judge Don Davis—among others—in an attempt to overturn Alabama’s marriage amendment after one of the women was denied from adopting the other woman’s child.
In January 2015, U.S. District Judge Ginny Granade ruled in favor of the women, prompting Moore to send a memo to probate judges throughout the state, advising that they are not required to issue “marriage” licenses to same-sex couples as he believed that Grenade’s ruling only applied to the two women.
“[N]othing in the orders of Judge Grenadae requires Alabama probate judges to issue marriage licenses that are illegal in Alabama,” he wrote. “Pursuant to … the Federal Rules of Civil Procedure, Alabama probate judges are not subject to those orders because the probate judges are not parties or associated with any party in those cases.”
“[T]he injunction and the stay or the lifting thereof can only apply to the sole defendant, the Alabama attorney general,” Moore said. “I urge you to uphold and support the Alabama Constitution and the Constitution of the United States to the best of your ability. So help you God.”
Moore also wrote a letter to Gov. Robert Bentley, urging him to “uphold and support the Alabama Constitution with respect to marriage, both for the welfare of this state and for our posterity.”
“Be advised that I will stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority,” he stated.
The Southern Poverty Law Center (SPLC) then filed a judicial ethics complaint against Moore over his letter to Gov. Bentley, and the homosexual activist group Human Rights Campaign (HRC) submitted 28,000 petition signatures to the JIC calling for Moore’s removal.
As confusion ensued over Moore’s letter to probate judges, one judge, John Enslen of Elmore County, asked the full Alabama Supreme Court for further guidance. In March 2015, six of the nine judges of the Alabama Supreme Court released a historic order halting the issuance of same-sex “marriage” licenses in the state. Moore recused himself from the matter and was not included in the order.
“As it has done for approximately two centuries, Alabama law allows for ‘marriage’ between only one man and one woman,” the 148-page order read. “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.”
In January, Moore sent another letter advising that the full court’s would remain in effect until it issued directives in light of the U.S. Supreme Court ruling in Obergefell v. Hodges.
“Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect,” he wrote on Jan. 6.
He also noted that his order does not weigh in on how June’s U.S. Supreme Court ruling has impact on the Alabama Supreme Court’s directive, and said that it was not his place to make that determination.
“I am not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on the existing orders of the Alabama Supreme Court. That issue remains before the entire court, which continues to deliberate on the matter,” Moore wrote.
In May, the Alabama Judicial Inquiry Commission (JIC) announced that it had filed ethics charges against Moore, and suspended the chief justice while he faces a trial before the Alabama Court of the Judiciary (COJ).
It said that Moore was “bound by the United State Supreme Court’s interpretation and application” of the Constitution to same-sex “marriage,” but Moore noted that his letter had nothing to do with the Supreme Court order, and that the full court was to later issue directives about the matter after receiving legal briefing.
“The administrative order of Chief Justice Moore expressly said he could not provide guidance to the probate judges because the matter was pending before the Alabama Supreme Court,” Moore attorney Mat Staver with Liberty Counsel said in a statement.
Therefore, Moore moved for a dismissal of the charges, and Mike Joiner, the chief justice of the COJ, granted the request to have his motion heard. The JIC had until Friday to submit any rebuttal.
“The Chief Justice’s January 6th order and his conduct surrounding it has once again created an atmosphere in which Alabama’s subordinate judges—and by extension, the public itself—have been encouraged to show disregard for a binding federal injunctions and clear federal law,” the JIC asserted in its legal brief.
“It also represents a blatant abuse of his (Moore’s) administrative authority, one which placed his impartiality into question on a matter pending before the entire Alabama Supreme Court,” it said.
In addition to seeking dismissal of the charges, the chief justice has sued the JIC for its actions, which he believes to be unconstitutional. As previously reported, attorneys for Moore sued the JIC in May to challenge the legality of the charges leveled against the “Ten Commandments Judge” and to seek his immediate reinstatement to the bench.
“The JIC has no jurisdiction over an administrative order of the chief justice. Only the Alabama Supreme Court has jurisdiction, and that court agreed with the order,” Staver said in a statement following the initial filing.
Liberty Counsel also asserted in its complaint that the JIC violated the confidentiality rule that requires that details of an investigation be keep confidential until charges are issued.
“In this case, the JIC intentionally leaked the pending charges to the media, which is a serious violation of the JIC rules,” he said.
The JIC is seeking to have the lawsuit filed against the Commission dismissed, but Liberty Counsel fired back on Monday in a legal brief.
“The requirement that Alabama provide a judge with due process before imposing a suspension from office neither interferes with the current proceeding in the COJ nor requires this court to supervise any future proceeding,” it said.
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