Surprise: New York Times agrees with Roy More, kind of

Alabama Supreme Court Chief Justice Roy Moore (Photo: YouTube)

NEW YORK, NY — The most well-known newspaper in the world weighed in on Alabama Supreme Court Chief Justice Roy Moore’s attempt to block same-sex marriage in the state, and you might be surprised by what it said.

Roy Moore is right… sort of… NYT staff writer and Yale Law School senior research fellow Emily Bazelon wrote Wednesday.

The process by which same-sex marriage became legal in Alabama is highly unusual, Bazelon argued, and in many ways, she and over legal scholars think Chief Justice Moore is right.

“District-court rulings, even if they’re about important matters of policy, usually affect only the people involved in the case in question,” Bazelon wrote. “They don’t typically make law for an entire state; that responsibility falls to a state’s highest court, or a federal appeals court — in this case the U.S. Court of Appeals for the 11th Circuit — or eventually the Supreme Court, which makes law for the country.”

In her opinion, Justice Moore is correct that judge Callie “Ginny” Granade’s order doesn’t require probate judges to issue marriage licenses to same-sex couples because Alabama’s probate judges weren’t named in the case.

Emily Bazelon isn’t the only legal scholar who believes Moore’s reasoning is legally correct—at least partially. University of California at Irvine law professor Rick Hasen reiterates Bazelon’s point and adds that even if the 11th Circuit court had held judge Granade’s ruling, Alabama’s probate judges would still not be required to issue same-sex marriage licenses.

Bazelon contrasts Alabama’s case to a similar situation in Utah, where the US Supreme Court stepped in and stayed a district court’s order, even after 1,300 same-sex couples got married in the state.

By not staying the Alabama district court ruling, the Supreme court “is creating, or allowing lower courts to create, facts on the ground that favor one side in the gay-marriage case it has agreed to hear,” Bazelon wrote. “There’s no constitutional rule that requires the Supreme Court to go along with the rising number of states that have legalized same-sex marriage. But the momentum starts to seem inexorable. And to the extent the Supreme Court is encouraging this, it’s not really a good thing, because courts aren’t supposed to tip their hands in advance of ruling. The definition of justice, after all, includes giving the parties a fair and open-minded hearing.”

Bazelon finishes by arguing the now-cliched depictions of Justice Moore as a modern-day George Wallace standing in the schoolhouse door are “not fair.”

“When Alabama’s segregationist governor blocked the entrance of the University of Alabama in 1963, in defiance of court-ordered integration, he was standing in the way of the Supreme Court and its desegregation ruling in Brown v. Board of Education nine years earlier — as well as a federal injunction ordering the university to admit two black students. In that case, the Supreme Court absolutely had the power to tell Alabama what to do, because it is the Supreme Court. But Judge Granade is not. And so far, at least, her order doesn’t even clearly apply to all of Alabama’s (understandably confused) probate judges. If that changes — a hearing has been set to sort this out — then they’ll know for sure it’s time to start signing marriage licenses.”