Judge Ray Moore, Governor Robert Bentley, the Bible and the Constitution

     Late last night Ray Moore, Chief Justice of the Alabama Supreme Court, issued an order to all Probate Judges in Alabama to refuse to issue marriage licenses to same-sex couples. In his order he called upon Governor Robert Bentley to enforce Alabama law prohibiting same sex marriages.


     According to WAFF of Huntsville, last night Alabama Chief Justice Ray Moore ordered Alabama Probate Judges to disobey a federal court ruling striking down provisions of the Alabama Constitution and Alabama statutes that prohibit same sex marriage. Justice Moore's February 8 order states, in relevant part:

Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975. 

     Chief Justice Moore added:

Should any Probate Judge of this state fail to follow the Constitution and statutes of Alabama as stated, it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests "the supreme executive power of this state," Art. V, Sec. 113, Ala. Const. 1901, to ensure the execution of the law."

     Brian Lyman of the Montgomery Advertiser reports that Governor Bentley intends to respond to Moore's order on Monday.

     In his order Chief Justice Moore invokes the Constitution and laws of the State of Alabama as legal authority for refusing to obey the command of the federal courts in the interpretation of the Constitution. The Supremacy Clause of the Constitution does not leave any room for doubt as to the relation between the Constitution of the United States and Alabama law. It not only states that the Constitution is the "supreme law of land," but it specifically provides that state constitutions and state laws are subordinate to it:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the Untied States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any state to the Contrary notwithstanding.

    In his earlier letter of February 3 Justice Moore also invokes religion as the reason that same sex marriage is prohibited. He argues that under Alabama law the "holy estate of matrimony" is a "divine institution," a "sacred covenant" that creates a "sacred relation" that imposes "religious obligations." Moore, of course, is famous for the 2003 conflict over his refusal to obey a federal court order to remove a monument to the Ten Commandments from the Alabama Judicial Building, as a result of which Moore himself was removed from office by order of the Alabama Court of the Judiciary.

     The Bible is surely a "higher law" to many adherents of the Christian faith, but it is not law. In an editorial entitled "Constitution, not Bible, is the supreme law of the land," Vanzetta Penn McPherson cogently distinguishes the Bible from the Constitution:

The Bible is the textual foundation of religious doctrine among Christians. It governs spiritual beliefs and practices, and its teachings instruct Christians on the moral propriety or impropriety of human behavior. Faith in a deity is the premise of its tenets.
The Bible is the exclusive textual foundation for Christians only -- not so for Muslims, Jews, Buddhists, Hindus, agnostics or atheists.
The United States Constitution is the supreme law of America. It governs individuals' legal relationships with each other and citizens' relationships with government. Reason and analysis are the premises of its tenets. The Bible does not articulate or govern legal relationships, and the Constitution does not articulate or govern spiritual belief.

     McPherson is correct. The machinery of the government may be invoked only to serve the law, not to serve religion. Religious belief may inspire us and forge our opinions about how we should treat each other, but it does not dictate how we must treat each other. The law does that. All citizens are under the law and must be obedient to it -- particularly governors and chief justices.