Echo from the Past: Chief Judge of Alabama Supreme Court Blocks Order of the United States Supreme Court

Chief Judge Ray Moore of the Alabama Supreme Court, in his capacity as administrator of all the state courts, has ordered clerks across the state to cease issuing marriage licenses to gay and lesbian couples. This is not the first time that Judge Moore has issued such an order. He did so on February 8, 2015, before the Supreme Court issued its decision in Obergefell v. Hodges. Here is the essay I posted at that time, and here is the blog entry posted a few days later discussing the Supreme Court's refusal to enter a stay on behalf of the State of Alabama. Nor is this the first time that the Alabama Supreme Court has disobeyed the United States Supreme Court in a matter relating to civil rights.

During the Civil Rights era the State of Alabama sought to silence the N.A.A.C.P. by demanding the disclosure of its membership lists. In 1958 in the case of N.A.A.C.P. v. Alabama, the United States Supreme Court ruled against the state, noting that members of the N.A.A.C.P. would likely face "economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility" if their association with the civil rights organization were revealed. The Court's decision in N.A.A.C.P. v. Alabama is now considered to be a landmark case in the protection of Freedom of Association.

Despite this ruling, the Alabama Supreme Court continued to issue orders prohibiting the N.A.A.C.P. from operating within the state. The rulings of the Alabama Supreme Court were appealed to the United States Supreme Court three more times. Finally, in 1964, the U.S. Supreme Court had had enough, and Justice Harlan entered the following order:

In view of the history of this case, we are asked to formulate a decree for entry in the state courts which will assure the Association’s right to conduct activities in Alabama without further delay.  While such a course undoubtedly lies within this Court’s power, we prefer to follow our usual practice and remand the case to the Supreme Court of Alabama for further proceedings not inconsistent with this opinion. Such proceedings should include the prompt entry of a decree, in accordance with state procedures, vacating in all respects the permanent injunction order issued by the Circuit Court of Montgomery County, Alabama, and permitting the Association to take all steps necessary to qualify it to do business in Alabama.  Should we unhappily be mistaken in our belief that the Supreme Court of Alabama will promptly implement this disposition, leave is given the Association to apply to this Court for further appropriate relief.

It is possible that the federal courts will give the Alabama courts the opportunity to review and reverse Judge Moore's illegal and misguided order. It is also possible that Judge Moore has exhausted the patience of the federal courts and that immediate relief will issue.