March 23, 2015 (ThePublicDiscourse.com) — Alabama Supreme Court Chief Justice Roy Moore made news last month when he ordered probate judges in Alabama under his judicial supervision not to issue marriage licenses to same-sex couples, even though a federal district judge had held the law defining marriage as a union between a man and a woman to be unconstitutional. Howls of “lawlessness” went up in the corridors of the nation’s elites. Those cries will undoubtedly grow even louder now that the entire Alabama Supreme Court has issued a 7-1 ruling ratifying Chief Justice Moore’s stance.
Our nation’s elites have convinced themselves that a judicial order by a single federal court trial judge, no matter how wrong or contrary to existing precedent, is the “law of the land” and must be followed unquestioningly. Some even compared Chief Justice Moore’s actions to those of the late Governor George Wallace standing defiantly in a schoolhouse door to block implementation of the US Supreme Court’s desegregation decision. The ghost of the late Justice Charles Evans Hughes, who infamously said that “We are under a Constitution, but the Constitution is what the judges say it is,” is undoubtedly smiling.
We have come to expect such claims of unfettered judicial supremacy from the left, but Chief Justice Moore and his fellow justices on the Alabama Supreme Court have by far the better argument.
Our State and Federal Judicial Systems
First, a couple of basic facts. There are two judicial systems in this country, not one. Federal courts exist side by side with state courts, and both have a duty to follow the US Constitution. Indeed, as Article VI of the Constitution makes clear, “All . . . judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” Decisions of the lower federal courts—what the Constitution calls “inferior courts”—are not binding on the state courts. If the lower federal courts in a state interpret the Constitution in a way that conflicts with the interpretation adopted by the state courts, neither decision has binding effect on the other.
The US Supreme Court has held that “A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” Only the Supreme Court of the United States, which sits at the pinnacle of both judicial systems, can resolve such conflicts.
Second, it is important to note that the federal court order at issue was entered by a single federal trial court judge, who serves on the US District Court for the Southern District of Alabama, one of three federal district courts in Alabama. That court has jurisdiction over only thirteen of Alabama’s sixty-seven counties.
While a federal district court order declaring a state law unconstitutional and enjoining its enforcement can have statewide effect if there is a statewide official involved in the case before the court, that order can only bind the defendants named in the suit, their officers and agents, and “other persons who are in active concert or participation with” them, as specified in the Federal Rules of Civil Procedure. The order cannot bind people not before the court or acting in concert with them.
Under Alabama law, probate judges—who are responsible for issuing marriage licenses in Alabama—are judicial, not executive officers, and are entirely independent of the executive branch of government. Therefore, the order issued to the Attorney General of Alabama did not and could not bind probate judges.
Plaintiffs in the case soon recognized this problem. After the controversy over Chief Justice Moore’s directive erupted, they quickly filed a post-hoc amendment of their complaint to name the Mobile County probate judge. Within twenty-four hours, the federal district judge revised her order to cover that individual as well. Of course, the very fact that plaintiffs needed to make such an amendment was an admission that probate judges were not bound by the prior order. It is also an implied admission that Alabama’s probate judges—including those in the other twelve counties within the Southern District—are even now not bound by the order in litigation to which they are not parties. It’s also a pretty clear admission that this particular federal court judge would have no jurisdiction to extend her order to probate judges in the other fifty-four counties in the state that are outside the boundaries of the Southern District.
Hierarchy and Judicial Authority
Those are basic issues of federal court jurisdiction, and Chief Justice Moore is absolutely correct in his reliance on them. But there is an even more fundamental issue of precedential authority in our judicial system at stake in this case. Not only are there two parallel court systems, but those systems are both hierarchical in nature. That means that the lower courts in each system are bound by existing precedent of higher courts in their respective systems, with the US Supreme Court sitting atop both. In other words, both the lower federal courts and the state courts (even including state supreme courts) are bound by decisions of the US Supreme Court.
The big irony for those accusing Chief Justice Moore and his fellow justices of ignoring the allegedly binding effect of the lower federal court order is that the lower federal court itself refused to follow US Supreme Court precedent—precedent that is as binding on that lower federal court as it is on Alabama Supreme Court and Alabama county probate judges.
In 1972, the US Supreme Court upheld a decision by the Minnesota Supreme Court holding that a state’s man-woman marriage law was not unconstitutional. That decision, Baker v. Nelson, is binding on the lower courts, both federal and state, even though it was only a summary disposition. Many in the legal academy, and many lower federal courts, believe that the Supreme Court will itself not adhere to that decision when it rules later this year on the marriage cases from Ohio, Michigan, Kentucky, and Tennessee, because subsequent doctrinal developments have, in their view, undermined the precedential value of Baker. But a belief in what the Supreme Court might do is not a basis for issuing a decision contrary to the existing precedent.
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As the Supreme Court has itself made clear, “the lower courts are bound by summary decisions by [the Supreme] Court ‘until such time as the Court informs [them] that [they] are not.’” This is true even if more recent Supreme Court cases appear to undermine the reasoning of the precedent: “If a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of over-ruling its own decisions.”
In other words, the ethical considerations that led some to chastise Chief Justice Moore were misdirected. It is federal district judge Callie Granade who acted lawlessly by failing to follow existing Supreme Court precedent that remains binding on her. Indeed, were Chief Justice Moore to follow Granade’s order, he would be violating his duty to comply with the binding authority of the Supreme Court, in deference to a lawless order by a single federal trial court judge. In a well-reasoned and lengthy opinion adopted by a 7-1 vote, the Alabama Supreme Court has concluded just that.
What If the Supreme Court Redefines Marriage?
It is important to note what is not at issue in this controversy, at least not yet. That is whether public officials will be bound by a decision of the US Supreme Court wrongly interpreting the Constitution to mandate a nationwide redefinition of marriage.
The oath that all public officials take, whether they be legislators, executives, or judges, is to adhere to the Constitution. Of course, the courts have to interpret the Constitution. Yet the very same judicial opinion that famously established the principle of judicial review, Marbury v. Madison, argued strongly and persuasively that the Constitution was above every branch, including the judiciary. President Thomas Jefferson quite rightly expressed grave concerns about an interpretation of Marbury that moved beyond judicial interpretation to judicial supremacy, noting that “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
In response to the Supreme Court’s egregiously wrong interpretation of the Constitution in Dred Scott v. Sanford, Abraham Lincoln famously, and quite correctly, made the following statement in his First Inaugural Address:
the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
If the Supreme Court rules later this year that a constitutional provision adopted in 1868 mandates a redefinition of marriage in all fifty states, that will be the time for public officials throughout the land to determine whether they have the fortitude of a Lincoln or whether we have now reached the point where the people “have ceased to be their own rulers.” But the Alabama Supreme Court’s ruling directing state officials to cease issuing illegal marriage licenses to same-sex couples complies with existing Supreme Court precedent. It is the unlawful order of an “inferior” court that does not follow that binding precedent.
Dr. Eastman is the Henry Salvatori Professor of Law and Community Service, and former Dean at Chapman University’s Dale E. Fowler School of Law. He is founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, and Chairman of the Board of the National Organization for Marriage.
Reprinted with permission from The Witherspoon Institute.