united-states constitutional-law marriage
Did Alabama legalize gay marriage, or outlaw it?
<p>On 4 March 2016, the Supreme Court of Alabama dismissed a petition by conservative activist group Alabama Policy Institute and a probate judge to halt gay marriages in the state.</p>

<p>This <a href="http://www.nbcnews.com/news/us-news/alabama-supreme-court-refuses-challenge-gay-marriage-n532171" rel="nofollow noreferrer">was reported</a> by mainstream NBC News (which may have a liberal lean?) as the end of legal challenges to gay marriage in the state.</p>

<p>On the other hand, conservative family activism and religious liberty group AFA <a href="https://www.afa.net/the-stand/culture/2016/03/alabama-how-to-break-the-back-of-judicial-tyranny/" rel="nofollow noreferrer">reported on the same decision</a> as a stand against judicial tyranny and a refusal to acknowledge the constitutionality and nationwide binding precedence of <a href="https://en.wikipedia.org/wiki/Obergefell_v._Hodges" rel="nofollow noreferrer">Obergefell v. Hodges</a>.</p>

<p>I was confused by the apparent contradiction between the two accounts, so I checked the <a href="https://acis.alabama.gov/displaydocs.cfm?no=721120&amp;event=4KW0LCPOJ" rel="nofollow noreferrer">ruling on the court's website</a>. Chief Justice Roy Moore spends 100 pages explaining why gay marriage is evil and unnatural, why Obergefell was an unconstitutional opinion, why unconstitutional opinions do not creating binding precedent, what our oaths of loyalty to the constitution mean, what the difference between a ruling and an opinion is, why he needn't recuse himself, and why Obergefell only applies to the parties to the case, and not to the probate judges of the state of Alabama.</p>

<p>Then he concludes by saying on page 100:</p>

<blockquote>
  <p>As stated at the beginning of this special concurrence, the
  certificate of judgment in this case does not disturb the March 2015
  orders of this Court that uphold the constitutionality of the Sanctity
  of Marriage Amendment and the Alabama Marriage Protection Act. For
  that reason, as explained above, I concur.</p>
</blockquote>

<p>I'm confused. His discussion make it seem like AFA has reported correctly that the Alabama judiciary is taking a principled stand against the SCOTUS's decision in Obergefell. But then he concurs to dismiss the petition to halt gay marriage, which seems to have the effect of enforcing Obergefell. If he thinks the probate judges are bound to deny marriage certificates to same sex couples, why is he concurring to dismiss, instead of dissenting? Justice Bolin also writes a concurrence, where he states that despite disagreeing with Obergefell, he recognizes the authority the SCOTUS has over Alabama. That makes sense. But what is Chief Justice Moore doing here?</p>

<p><strong>In this ruling, the Alabama Supreme Court dismissed a case seeking to halt same-sex weddings in Alabama, which had begun under Obergefell.</strong></p>

<p>The text of the ruling is, in whole:</p>

<blockquote>
  <p>IT IS ORDERED that all pending motions and petitions are DISMISSED.</p>
</blockquote>

<p>The remaining 169 pages are editorializing, nothing more.</p>

<p>The NBC characterization is, therefore, correct:</p>

<blockquote>
  <p>The Alabama Supreme Court refused Friday to defy the U.S. Supreme Court ruling that effectively legalized same-sex marriage nationwide, cutting off a conservative bid to prevent gay weddings in the state.</p>
</blockquote>

<p>Now it is true that Chief Justice Roy Moore was, at the time, holding to a rather unorthodox position that Obergefell somehow didn't apply to Alabama.</p>

<p>This was not the ruling of the court, nor did the Alabama "Court of the Judiciary" seem sympathetic to this view. </p>

<p>On May 6, 2016, The COJ <a href="https://www.al.com/news/birmingham/2016/09/alabama_supreme_court_chief_ju.html" rel="noreferrer">suspended Moore from the bench</a> for sending an improper administrative order to lower-court Alabama judges instructing them to ignore the SCOTUS ruling on Obergefell. </p>

<p>This suspension was eventually upheld (by the remaining members of the Alabama Supreme Court) and <a href="https://www.al.com/news/birmingham/2017/04/suspended_alabama_supreme_cour.html" rel="noreferrer">he was ultimately forced to resign</a>.</p>

<p>The U.S. Supreme Court legalized gay marriage everywhere in the U.S.</p>

<blockquote>
  <p>"The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. ... The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Obergefell V. Hodges, 576 U.S. ___, 23, 28 (2015) cited and linked by the OP in paragraph 3 of the question we are answering</p>
  
  <p><a href="https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf" rel="nofollow noreferrer">https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf</a></p>
</blockquote>

<p>The Alabama court didn't do anything about gay marriage, legalize or outlaw it, because it doesn't have the authority to do anything</p>

<blockquote>
  <p>"The Supremacy Clause of the Constitution of the United States (Article VI, Clause 2), establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the 'supreme law of the land'. It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be applied. Even state constitutions are subordinate to federal law."</p>
  
  <p><a href="https://en.wikipedia.org/wiki/Supremacy_Clause" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Supremacy_Clause</a></p>
</blockquote>

<p>The Alabama court dismissed the case because it was moot.</p>

<blockquote>
  <p>"In the legal system of the United States, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law." </p>
  
  <p><a href="https://en.wikipedia.org/wiki/Mootness" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Mootness</a></p>
</blockquote>

<p>Judge Moore's 100 page Statement of Nonrecusal is dicta, the intent of which was to loudly proclaim his objection the legalization of same sex marriage, but which has no legal effect</p>

<blockquote>
  <p>"The law of stare decisis contains two basic and virtually undisputed principles. First, the doctrine of vertical stare decisis requires lower courts to follow a higher court’s holdings. Second, lower courts are not bound to follow the dictum of a higher court. ... Dicta include 'statement[s] in an opinion not necessary to the decision of the case;' holdings, on the other hand, are statements actually necessary to decide the issue between the parties."</p>
  
  <p>"Appellate judges are careful writers, and are familiar with the principle opposing advisory opinions. Yet passages that are obviously dicta appear throughout their opinions ... "</p>
</blockquote>

<p>Judge Moore's writing is orbiter dicta because it is his rejection of the U.S. Supreme Court's decision to legalize same sex marriage. The issue before the Alabama Supreme Court was a request for delay of an order by the Alabama Supreme Court to deny marriage licenses to same sex couples in defiance of the ruling by the Federal District Court that same sex couples have a Constitutional right to marry and an order by that court to issue marriage licenses to same sex couples. As a result of the U.S. Supreme Court's ruling, the Alabama Supreme Court passed upon the issue before it.</p>

<blockquote>
  <p>"'Obiter dicta' involve points neither argued by the parties nor deliberately passed upon by the court; these statements often originate with the writing judge. Obiter dicta generally have no persuasive influence."</p>
  
  <p><a href="http://willamette.edu/law/resources/journals/review/pdf/volume-47/wlr-47-2-mcallister.pdf" rel="nofollow noreferrer">http://willamette.edu/law/resources/journals/review/pdf/volume-47/wlr-47-2-mcallister.pdf</a></p>
</blockquote>

<p>Judge Moore's dicta is dead because it has been explicitly rejected by the U.S. Supreme Court.</p>

<blockquote>
  <p>"Dead dicta has died through the issuing court’s explicit pronouncements."</p>
  
  <p><a href="http://willamette.edu/law/resources/journals/review/pdf/volume-47/wlr-47-2-mcallister.pdf" rel="nofollow noreferrer">http://willamette.edu/law/resources/journals/review/pdf/volume-47/wlr-47-2-mcallister.pdf</a></p>
</blockquote>
